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 <TJH0NYSC
 
 A TREATISE 
 
 FRAUDULENT CONVEYANCES 
 
 CREDITORS BILLS. 
 
 BY 
 
 FREDERICK S. WAIT, 
 
 OP THE NEW YORK UAR, 
 
 Author of "Insolvent Corporations, 1 ' 1 "Trial of Title to Land," etc. 
 
 THIRD EDITION. 
 
 Revised and Enlarged. 
 
 NEW YORK 
 
 BAKER, VOORHIS & COMPANY 
 
 1897
 
 T 
 
 Copyright, 1884, 
 By Frederick S. Wait. 
 
 Copyright, 1889, 
 By Frederick S. Wait. 
 
 Copyright, 1897, 
 By Frederick S. Wait. 
 
 HPAMV, 
 
 ALIIANY, H. V.
 
 £ 
 
 ft 
 
 Gfbso 
 
 To the Memory 
 
 of 
 
 DANIEL G. ROLLINS. 
 
 687513
 
 PREFACE TO THIRD EDITION. 
 
 In this edition much fresh matter has been embodied 
 in the original text, a number of new sections have been 
 written, and the citations of authorities increased several 
 thousand cases over the number contained in the former 
 edition. Over one hundred and eighty pages of entirely 
 new matter has been written for this edition. Special 
 efforts have been put forth to utilize the latest import- 
 ant authorities bearing upon the topics discussed. Most 
 of the old questions have been fought over in the courts 
 since our last edition. The multitude of recent cases 
 involving fraudulent alienations and covinous schemes 
 devised to defeat the claims of creditors, demonstrates 
 how important and far-reaching the subject under con- 
 sideration has become. Sometimes a creditor's entire for- 
 tune is dependent upon a correct exposition of the statute 
 of Elizabeth. The writer is confirmed in his early convic- 
 tion that the policy resulting in a relaxation of remedies 
 against the person which an enlightened civilization seemed 
 to demand, has created a numerous and very obnoxious 
 class of what may be called professional fraudulent debt- 
 ors. The spendthrift trust cases now so numerous reflect no 
 credit upon the body of our law. The policy of enlarging 
 statutory exemptions ; of depriving creditors of the right 
 to resort to powers as assets ; of upholding shifting liens
 
 vi PRE1 Ail: TO THIRD EDITION. 
 
 upon personal property ; of shielding debtors with an 
 undeserved mantle of presumptions; and of exacting 
 explicit proof of notice sufficient to charge alienees with 
 bad faith — is certainly working injustice to the creditor 
 class. 
 
 The aim of this treatise is to furnish suitors with a 
 practical guide in this kind of litigation. The earlier 
 statutes and decisions concerning fraudulent alienations 
 to defeat creditors have been noticed ; the debtor's rights 
 and interest in property available to creditors have been 
 considered ; and the different forms of remedies or of pro- 
 cedure which may be invoked either at law or in equity ; 
 the status essential to entitle a creditor to maintain a bill ; 
 questions of parties, complainant and defendant ; of plead- 
 ing ; the form and effect of the judgment ; and the rules 
 regulating provisional relief, reimbursement and subroga- 
 tion have been treated, the discussion embracing- both 
 chancery practice and the reformed procedure. 
 
 The discussion, however, has not been limited to the 
 details of practice or procedure. Chapters have been 
 devoted to the subjects of intention, consideration, and 
 indicia of fraud ; to the important questions relating to 
 change of possession, and generally to evidence and 
 defenses as appertaining to these suits. The rules appli- 
 cable to frauds upon creditors springing out of the rela- 
 tionship of husband and wife, and relative to covinous 
 ral assignments and fraudulent chattel mortgages, 
 have been examined, and the doctrine of spendthrift trusts 
 discussed. Special pains have been taken in the treatment 
 of the law of notice, actual and constructive, as applied 
 1 1 - our subjei t .
 
 PREFACE TO THIRD EDITION. Vll 
 
 One of the chief aims of a work of this kind is to bring 
 side by side the decisions in different States upon kindred 
 questions and construing similar statutes. Federal authori- 
 ties have been frequently quoted, cited, and relied upon, 
 because more universally accredited, and in pursuance of a 
 belief that such a policy tends to render the body of our 
 law more symmetrical and harmonious. Still, the great 
 mass of the decisions collated and discussed has been drawn 
 from the courts of last resort in the various States. 
 
 The writer acknowledges the valuable assistance of 
 Adolph L. Pincoffs, Esq., and Paul M. Goodrich, Esq., 
 both of the New York Bar, in preparing this edition. 
 
 No. 10 Wall Street, 
 New York, October^ 1807.
 
 CONTENTS. 
 
 FRAUDULENT CONVEYANCES AND 
 CREDITORS' BILLS. 
 
 CHAPTER I. 
 
 PAGE 
 
 Introductory Observations. — Growth of the Law con- 
 cerning Fraudulent Conveyances- — Phases of the 
 Subject, ......... i 
 
 CHAPTER II. 
 
 Property Susceptible of Fraudulent Alienation. — Assets 
 
 Available to Creditors, ...... 53 
 
 CHAPTER III. 
 
 Creditors' Remedies, ....... 96 
 
 CHAPTER IV. 
 Status of Attacking Creditors, ..... 139 
 
 CHAPTER V. 
 Existing Creditors, ........ 180 
 
 CHAPTER VI. 
 Subsequent Creditors, ....... 193 
 
 CHAPTER VII. 
 Who may be Complainants, ....-• 213
 
 X '"'iXTENTS. 
 
 CHAPTER VIII. 
 
 r PAGE 
 
 Par i ii - Defendant, . . . . • . . . 249 
 
 CHAPTER IX. 
 
 [PLAINT, . . ■ • • • . . . 270 
 
 CHAPTER X. 
 
 111 l'i v.\ or Answer, ....... 300 
 
 CHAPTER XL 
 me Judgment or Decree, . . . . . -311 
 
 CHAPTER XII. 
 Provisional Relief. — Injunction. — Receiver. — Arrest, . 331 
 
 CHAPTER XIII. 
 Reimbursement and Subrogation, ..... 340 
 
 CHAPTER XIV. 
 Intention, . . . . . . . .351 
 
 CHAPTER XV. 
 01 R \tio\\ ......... 373 
 
 CHAPTER XVI. 
 Indicia or Badges of Fraud, . . • . . 398 
 
 CHAPTER XVII. 
 Change 01 Po ession. — Delivery, . 442 
 
 CHAPTER XVIII. 
 
 Evi DENCE, 
 
 473
 
 CONTENTS. xi 
 
 CHAPTER XIX.' 
 
 PACE 
 
 Defenses, .......... 505 
 
 CHAPTER XX. 
 
 Husband and Wife. — Fraudulent Marriage Settlements, 522 
 
 CHAPTER XXI. 
 Fraudulent General Assignments, ..... 546 
 
 CHAPTER XXII. 
 Fraudulent Chattel Mortgages, ..... 617 
 
 CHAPTER XXIII. 
 Spendthrift Trusts, ....... 636 
 
 CHAPTER XXIV. 
 
 Bona Fide Purchasers. — Actual and Constructive No- 
 tice. — Fraudulent Grantees, ..... 665 
 
 CHAPTER XXV. 
 Preferences, ......... 703 
 
 CHAPTER XXVI. 
 
 Conveyances Valid between the Parties. — Relief to 
 
 Defrauded Grantors, . . • • • .716 
 
 CHAPTER XXVII. 
 Jurisdictional Questions. — Conclusion, .... 738
 
 TABLE OF CASES 
 
 {References are to fages.~\ 
 
 Aaronson v. Deutsch, 565. 
 Abbey v. Dewey, 15. 
 
 v. Deyo, 94, 531, 532. 
 Abbot v. Johnson, 288. 
 Abbott v. Goodwin, 630. 
 
 v. Tenney, 40, 67, 106, 107. 
 
 v. Wood, 47. 
 Abegg v. Bishop, 221, 233, 597, 602, 
 
 603, 706. 
 Aber v. Brant, 187. 
 Abercrombie v. Bradford, 558. 
 Abney v. Kingsland, 469, 497. 
 Abraham v. Ordway, 511. 
 Acer v. Westcott, 673, 675. 
 Acker v. Leland, 299. 
 
 v. White, 349. 
 Ackerman v. Gorton, 79. 
 v. Hunsicker, 391. 
 Ackworth v. Kempe, 520. 
 Acme Lumber Co. v. Hoyt, 581. 
 Adams v. Davidson, 217, 242, 428, 492, 
 
 493. 495, 
 
 v. Edgerton, 538. 
 
 v. Fassett, 297. 
 
 v. Franklin, 475, 476. 
 
 v. Hull, 396. 
 
 v. Way, 154. 
 Addington v. Etheridge, 619. 
 Addison v. Bowie, 242. 
 Adee v. Bigler, 149, 171, 332. 
 
 v. Cornell, 563. 
 Adler v. Apt, 406. 
 
 v. Cloud, 613. 
 
 v. Ecker, 137, 550, 558. 
 
 v. Fenton, ior, 117, 143. 
 
 v. Milwaukee P. B. Mfg. Co., 
 
 253- 
 Adsit v. Butler, 140, 148, 157, 161, 176, 
 177, 178, 271. 
 v. Sanford, 165, 271. 
 /Etna Ins. Co. v. Johnson, 15. 
 ^tna Nat. Bank v. Fourth Nat. Bank, 
 81. 
 v. Manhattan Life Ins. Co., 51, 
 
 67, 68. 
 v. U. S. Life Ins. Co., 51, 57, 541. 
 
 Ager ?'. Duncan, 722. 
 
 v. Murray, 71, 73 
 Akersz/. Rowan, 4S1. 
 Albany City Bank v. Schermerhorn, 
 
 709. 
 Albany & R. I. & S. Co. v. Southern 
 
 Agr. Works, 615. 
 Alberger v. National Bank of Com- 
 merce, 703. 
 v. White, 357. 
 Albert v. Back, 298. 
 Albertoli v. Branham, 278. 
 Alden v. Gregory, 282. 
 Aldrich v. Blake, 348. 
 
 v. Earle, 490. 
 Aldridge v. Muirhead, 94, 508, 531. 
 Alexander, In re, 410. 
 v. Alexander, 95. 
 v. Caldwell, 489. 
 v. Crittenden, 524. 
 v. Gould, 151, 184. 
 v. Pendleton, 509. 
 v. Quigley, 264. 
 v. Todd, 430, 468. 
 Alkire v. Alkire, 544. 
 Allan v. McTavish, 19. 
 Allen v. Berry, 109, 133, 340, 344. 
 Center Valley Co.. 102. 
 Cole, 304. 
 Cowan, 459, 463. 
 Craft, 640. 
 Fortier, 497. 
 1 [alliday, 697, 702. 
 v. Kenned}', 704. 
 v. Kinyon, 353. 
 7'. Kirk, 436. 
 t. Massey, 47, 136. 
 7'. Montgomery, 230. 
 v. Mower, 302. 
 7'. Rundle, 4(1, 372. 
 7'. Smith, 465, 4(16, 506. 
 
 . Steiger, 214, 454. 
 7'. Stingel, 675. 
 7\ Thomas, 8 1 . 
 7'. Vestal, 26 |. 
 v. White, 640.
 
 XIV 
 
 :.'.;:. I IF CASES. [are towages. 
 
 Vllenspach v. Wagner, 214. 
 Ulentown Bank v. Beck, 4 ,|S - 
 ■ 
 1 . . in, I 17, 717, 724. 
 . \\ eller, 251, : 
 Allvn .-. Thurston, 155, 177, 270. 
 Ahum 1 . Leper, 14". 
 Rowley, 1 
 
 222, 438. 
 Alton .- . Harrison, 411. 41 -•. 
 Altrii ' tpeheart, 396. 
 
 Amblei v. Choteau, : 
 Amer. Brewing Co. McGruder, 
 
 Amer. Exch. Hank v. Inloes 5S1. 
 Amer. 0.1k Leather Co. r. i 
 619. 
 v. Wyeth H. & M. Co., 620. 
 Amer. Sugar Ref. Co. v. Fanch< 
 Amer. Union Tel. Co. v. Middle ton, 
 
 73S. 
 Ames, Ex parte \ 391, 411, 714. 
 ; . Hlunt, 560, 592, 717. 
 v. Gilmore, 10, 415. 
 
 ir, 29, 317, 339, 518. 
 Amherst's Trusts, hi r*, 647. 
 Amnion's Appeal. 210, 437. 
 Amsden v. Manchester, 486, 487, 501. 
 Amy v. Manning, 337. 
 Anderson v. Bli 682. 
 
 v. Bradford, 168, 169. 
 v. Briscoe, 315. 
 • ioks, 470. 
 iry, 643. 
 '.inn, 379. 
 . Etter, 47, 669. 
 mith, 56. 
 714. 
 Pilgrim, 115. 
 v. Radcliffe, 247. 
 v. Reed, 338. 
 . . Roberts, 7. 47-. 70.,. 
 
 Wheeler, 517. 
 
 Andrew v. 1 linderman, 226. 
 
 Ami re.. 
 
 Marshall, 45. 
 
 V. V. 
 \ndruss v. Doolittli , 228, 
 
 Vsh, 133. 
 Annih -■. Annin 261, 294. 
 
 ' '.'. ',. Ward, 
 
 ( 1 Wall. Jr. 10; 
 
 ' Lamp 
 
 Chii 
 
 Anthracite Ins. Co. v. Sears, 5S. 
 Antrim v. Kelly 
 Apperson . . Burgett, 318, 415, , 
 Appolos v. Brady, « 
 Arbuckle Bros. Coffee Co. v. Canity, 
 140. 
 
 V. Werner, [64, 1 70. 
 Archer v. Lapp, 414, 500, 501. 
 
 ■■■ Long, 435. 
 
 co Oil Co. v. North Amer. Oil & 
 M. Co., 615. 
 Ardis v. Theus, 523. 
 Arglasse r, Muschamp, 738. 
 Ai [edge In ;-<-, 231. 
 Armtield v. Arm field, 383. 
 Armington v. Ran, 246, 717. 
 Armitage v. Mace, 530. 
 Armory v. Delamirie, 500. 
 Armstrong v. Carr, 390. 
 
 v. Dunn, 217. 
 
 v. Holland, 595. 
 
 v. Lachman, 498. 
 
 v. Sanford, 338. 
 
 v. Scott, 310. 
 Arnetl v. Coffey, 284. 
 Arnholt v. Hartwig, 66S 671. 
 Arnold v. Arnold, 290. 
 
 7'. Hagerman, 379. 
 
 v. Second Nat. Bank, 388. 
 Arnot v. Erie Ry. Co., 396. 
 Arn wine v. Carroll. 65. 
 Arthur v. Commercial & R. R. Bank, 
 33, 480, 556, 576. 
 
 v. Griswold, 502. 
 Artman v. Giles, 101, 113, 141, 260. 
 Arundell v. Phipps, 446. 
 Arzbacher v. Mayer, 639. 
 Ashcroft v. Simmons, 449. 
 
 v. Walworth, 73, 74. 
 Ashfield v. Ashfield, 59, 76. 
 Ashhurst v. Given, 650, 662. 
 Ashhurst's Appeal, 694. 
 Ashmead v. 1 lean, 363. 
 Aspden -■. Nixon, 1 54. 
 Aspinall v. Jones, 117. 
 Astor v. Wells, 357. 
 Athey v. Knotts, 60. 
 Atlantic Nat. Bank v. Tavener, 524, 
 
 525. 704- 
 Atty-( ren'l v. Brown, 305. 
 
 v. Corporation of Poole, 260. 
 7'. < j38. 
 
 ■ Day, 337. 
 
 i Windsor, 500. 
 Atwood .". Impson, [90, I 
 
 1 Exch. I tank v. Fitch, 704, 706. 
 Augusta Sav. Bank v. Stelling, 740. 
 Aulman v. A ulman, 593. 
 Aultman & T. Co. v. Pikop, 54. 
 Aurand 
 
 ows, c 18. 
 
 1 lank, 4S3. 
 v. Morris, 107. 
 ?'. Winston, 720.
 
 References'] TABLE OF CASES. [are to pages. 
 
 XV 
 
 Averill v. Loucks, 611. 
 Avery v. Hackley, 267. 
 
 v. Johan 1, 322, 688. 
 
 v. Judcl, 247. 
 
 v. Street, 403, 468. 
 Ayres v. Hasted, 409. 
 
 v. Scribner, 9. 
 
 Babb v. Clemson, 416, 463. 
 Babcock v. Eckler, 16, 22, 30, 187, 188, 
 192, 205, 208, 351, 369, 377, 524, 534. 
 
 v. Middlesex Sav. Bank, 483. 
 Bachman v. Lawson, 552. 
 
 v. Sepulveda, 264, 318, 329. 
 Bachrack v. Norton, 594. 
 Backhouse v. Harrison, 687. 
 
 v. Jett, 17. 
 Bacon v. Home, 614. 
 
 v. P. Brockman Com. Co., 632. 
 
 v. Scannell, 461. 
 Badger v. Badger, 282, 2S3, 284, 512. 
 
 v. Story, 229. 
 Baer v. Rooks, 11, 549, 558, 566. 
 
 v. Wilkinson, 563, 709. 
 Bagley v. Bovve, 590, 605, 606. 
 Bailey v. Bailey, 183, 198, 222. 
 
 v. Burton, 149, 150. 
 
 v. Glover, 284, 513. 
 
 v. Lane, 117. 
 
 v. Mills, 564. 
 
 v. Ryder, 294, 329, 739. 
 Bailie v. McWhorter, 654, 660. 
 Bainton v. Ward, 76, 77. 
 Baird v. Baird, 396. 
 
 v. Mayor, etc., of N. Y., 10, 566. 
 Baker v. Bartol, 218. 
 
 v. Bliss, 674, 680, 686, 688. 
 
 v. Connell, 396. 
 
 v. Gilman, 184, 211, 212, 727. 
 
 v. Humphrey, 37. 
 
 v. Keiser, 659. 
 
 v. Kelly, 372. 
 
 v. Lyman, 128. 
 
 v. Palmer, 518. 
 
 v. Pottle, 420. 
 
 v. Union Mut. Life Ins. Co., 396. 
 Baldwin v. Buckland, 593. 
 
 v. Cawthorne. 720. 
 
 v. Flash, 633, 634. 
 
 v. Freydendall, 436. 
 
 v. Hale, 517, 
 
 v. June, 343, 345, 
 
 v. Martin, 285. 
 
 v. Peet, no, 553, 577, 600. 
 
 v. Rogers, 34, 92. 
 
 v. Ryan, 176. 
 
 v. Short, 340, 342, 347, 373, 375. 
 Ball v. Campbell, 394. 
 
 v. Hancock, 640. 
 
 v. Loomis, 450, 551. 
 
 v. Slaften, 232, 233, 553. 
 
 v. Slafter, 229 
 Ballentine v. Beall, 149, 150, 215, 220. 
 Ballin v. Loch, 154. 
 
 Ballou v. Jones, l6l, [68, 
 
 Balto. & ("). R. R. Co., A., parte, 741. 
 
 v. Hoge, 430, 499. 
 Bamberger v. Schoolfield, S, 10, 12, 
 
 365, 39 8 > 45S, 47», 7'J5- 
 Bancroft v. Hlizzard, 357. 
 
 v. Curtis, 533. 
 Bane v. Detrick, 618. 
 Banfield v. Whipple, 354, 705. 
 Bank v. Brier, 347, 620. 
 
 v. Cooper, 229. 
 
 v. Forney, 64. 
 
 v. Gilmer, 402, 414. 
 
 v. Harris, 170, 171, 259. 
 
 v. Kennedy, 262. 
 
 v. Martin, 584, (107. 
 Bank of Commerce v. Fowler, 669. 
 
 v. Payne, 553. 
 
 v. Schlotfeldt, 7. 
 Bank cf Georgia v. Higginbottom, 411. 
 Bank of Leavenworth v. Hunt, 619, 
 
 7U- 
 Bank of Middlebury 7'. Rutland, 4^4. 
 Bank of Rome v. Haselton, 216. 
 Bank of Silver Creek v. Talcott, 8, 607. 
 Bank of the Metropolis v. Guttschlick, 
 
 81. 
 Bank of the U. S. v. Housman, 188, 
 
 191, 419, 468. 
 Bank of Utica v. City of Utica, 328. 
 Banner v. May, 431. 
 Banning v. Sibley, 549. 
 Bannister v. Phelps, 358. 
 Baptist Church v. Brooklyn Fire Ins. 
 
 Co., 496. 
 Barbarin v. Saucier, 132. 
 Barbour v. Conn. Mut. L. I, Co., 57. 
 
 v. Priest, 694. 
 Barhydt v. Perry, 208. 
 Barker v. Barker, 165. 
 
 v. Bradley, 81. 
 
 v. Davis, 643. 
 
 v. Dayton, 115, 336. 
 
 v. French, 424. 
 
 v. Smith, 232. 
 Barker's Estate, 663. 
 Barkow v. Sanger, 407, 478. 
 Barling v. Bishopp, 183, 206, 244. 245. 
 Barlow v. Arnold, 285. 
 
 v. Myers, 82. 
 Barnard v. Moore, 391. 
 Bauies, Matter of, 561. 
 
 v. Brown, 729. 
 
 v. Dow, 658, 660. 
 
 v. Gill, 243. 
 
 v. Morgan, 58, 73, 74, 75, 115. 
 
 v. Sammons, 182. 
 Barnet v. Fergus, 619. 
 Barnett v. Blake, 647. 
 
 v. Kinney, 124, 551, 615. 
 Barney v. Griffin, 556, 560, 577, 5S4. 631. 
 Barnitz v. Rice. 20. 
 Barnum ?>. Hempstead. 431. 607 
 Barr v. Church. 434, 435, 706.
 
 XVI 
 
 ■ <jj TABLE OF CASES. [are to fiages. 
 
 Barr :■. Cubbag' 
 
 i . Reitz, 443. 4 ;> . 4"-. 466. 
 Barrack 1 . McCulloch, <><>. 
 Barrett v. Hart. 404. 
 
 : . Nealon, 194, 
 
 . :■. Morris 
 
 ■■ :. Bailey, 10, 140, 30^, 41;, 
 426. 
 
 .- . Barrow, 277. 383, 717. 
 
 : . Paxton, 44". 
 Barry : . Abbot, 1 20, -'-'••. 
 
 1 . Equitable I.. A. Soc, 56. 
 
 r . Kennedy, I 
 .•. v. Kilvington, 40. 
 Bartb v. Backus. 614, 615. 739. 
 Bank- 7 . Nutt. 724. 
 Bartles v. Gibson, 414, 688. 
 Bartlett v. Blake. 7, 449. 
 
 v. Cheesbrough, 435. 
 
 v. Cheesebrough, 520. 
 
 !eavenger. 405. 407. 44.8. 
 
 7'. Drew, 237. 240, 241, 26S. 
 
 v. McNeil, 1 16. 
 Barto's Appeal, 100. 
 Barton v. Briscoe, 646. 
 
 :•. Hosner, 151, 156, 16S, 224, 
 225, 229, 234. 
 
 v. Sitlington, 622. 
 
 7 . \'anheythuysen, 37. 
 
 v. White, 73, 74. 
 Basset v. Xosworthy, 700. 
 Bassett v. Budlong, 640. 
 
 7. McKenna, 209, 224. 
 
 v. St. Albans Hotel Co., 140. 
 Batchelder v. White, 8. 
 
 .ham, 225, 262, 318. 
 Bates v. Ableman, 598. 
 
 v. Bradley, 229, 230, 
 
 v. Callender, 93. 
 
 v. Campbell, 469. 
 
 ;■. Cobb, 203. 
 
 v. Lidgerwood, Mfg. Co., 164, 
 242. 
 . Lyons, 142. 
 
 v. Plonsky, 159, 161, 217. 
 Batten :■. Smith, 233. 
 Battenhausen v. Bullock, 675. 
 Battles t\ Laudenslager, 9, 499. 
 Baughman v. IV. m, S, 9. 
 Bauknigbl v. Sloan, 215, 218, 259. 
 Baum v. P 
 
 Baumann ?■. Jefferson, 552. 
 
 Bauserman v. Blunt. 123. 
 
 Baxter Moses, 140, 142, 14: I' 7. 
 
 172. 
 Bay v. Cook 
 
 V. Hoffman, 40, 51, 58, 67. 107, 
 127. 
 Baym 
 Bayspoole v. Collins, 374. 
 
 Iron Co 1 loodall, 202, 309. 
 1 per, 133. 
 I; ' Evans Co Reeves, 689. 
 r, 172. 
 
 Beach v. Viles, 135. 
 
 v. White, 210. 
 Beadle, In re, 574. 
 Beal v. Lehman-Uurr Co., 278. 
 Beals -'. Guernsey, 448. 
 Beamish v. Hoyt, 06. 
 Bean v. Edge, - 1 . 
 
 v. Patterson, 593. 
 
 v. Smith, 48, S8, III, 343, 416, 
 700. 
 Beans v. Bullitt, 549. 
 Beard v. Dedolph, 529. 
 1 leards v. Wheeler, 365. 
 Beardsley v. Frame, 566. 
 Beardsley Scythe Co. v. Foster, 251, 
 
 252, 270, 271. 
 Beasley v. Bray, 427. 
 Beatty v. Fishel, 12. 
 Beaubien v. Beaubien, 274, 2S4, 516. 
 Beaumont v. Herrick, III, 266. 
 Beaupre v. Noyes, 184. 
 Beck z 1 . Burdett, 6, 97, 129, 14S. 
 
 v. Parker, 564. 
 Beck's Estate, 663. 
 Becker v. Torrance, 82, 115, 235, 298. 
 Beckwith v. Burrough, 51, 450, 465. 
 
 v. Union Bank, 553. 
 Bedell v. Chase, 370, 494. 
 
 v. Scruton, 517. 
 Bedford v. Penny, 688. 
 Beebe v. Saulter, 224. 
 Beecher v. Clark, 360, 376, 419. 
 
 v. Wilson, 534. 
 Beeckman v. Montgomery, 203, 206. 
 Beels v. Flynn, 32, 411. 
 Beene v. Randall, 302. 
 Beer v. Hooper, 517. 
 Beidler v. Crane, 342, 423, 425. 
 Belden v. Younger, 94. 
 Belford v. Crane, 29. 
 Belgard v. McLaughlin, 316. 
 Belknap v. Bender, 81. 
 Bell v. Fleming's Exrs., 391. 
 
 v. Johnson, 214. 
 
 v. Lamprey, 517. 
 
 v. Leggett, 712. 
 
 v. McCloskey, 462, 466. 
 
 v. Merrifield, 293,294, 311, 324. 
 
 v. Watkins, 659. 
 Bellamy v. Bellamy, 717, 726. 
 Bellows v. Wells 470. 
 I Belmont Branch Bank v. Hoge, 687. 
 Belt v. Ferguson, 544. 
 
 v. Rauget, 437. 
 Belton v. Hatch, 71. 
 Benedict v. Huntington, 606, 607. 
 Benevolent Order, etc. v. Sanders, 614. 
 Benfield v. Solomons, 592. 
 Benford v. Schell, 45S, 466. 
 Benjamin v. McElwaine-Richards Co., 
 
 495- 
 
 Benne v. Schnecko, 406, 407, 410, 536. 
 Bennet, Ex parte, 647. 
 Bennett v. Buchan, 674.
 
 References'] TABLE OF CASES. [are to ..■ 
 
 Bennett v. Chapin, 640. 
 
 v. Ellison, 557, 577. 584. 
 
 v. McGuire, 115, 116. 
 
 v. Minott, 167. 
 
 v. Stout, 140. 
 
 v. Wright, 334. 
 Benson v. Benson, 1S2. 
 
 v. Flower, 68. 
 Bentlev v. Whittemore, 614. 
 Benton v. Allen, 255. 
 
 v. Snyder, 451. 
 
 v. Thornhill, 408. 
 Bentz v. Rockey, 19, 34. 
 Bergen z'. Carman, no, 121, 315. 
 
 v. Snedeker, 315. 
 Bergen v. Varrelmann, 54S, 597, 603, 
 
 708. 
 Bernard v. Barney Myroleum Co., 126. 
 Berney Nat. Bank v. Guyon, 616. 
 Bernheim v. Beer, 38. 
 
 v. Dibrell, 502. 
 Bernheimer v. Rindskopf, 9, 10, 389. 
 Berry v. Riley, 556. 
 Berryman v. Sullivan, 153. 
 Bery v. Hall, 414. 
 Besson v. Eveland, 533, 534. 
 Best v. Staple, 246. 
 Beste v. Burger, 563, 579. 
 Bethel Steam Mill Co. v. Brown, 465. 
 Betts v. Carroll, 703. 
 
 v. Union Bank, 395. 
 Betz v. Snyder, 554. 
 Beuerlein v. O'Leary, 351, 501. 
 Beus v. Shaughnessy. 5S4, 586. 
 Beyer v. Thoeming, 8S. 
 Bholen v. Cleveland, 614. 
 Bibb v. Baker, 411, 426. 
 
 v. Freeman, 18, 181. 
 Bice v. Rogers, 370. 
 Bickham v. Lake, 610, 611. 
 Bickler v. Kendall, 415. 
 Bicknell v. Mellett, 480, 685. 
 Biddinger v. Wiland, 692. 
 Bidlack v. Mason, 239. 
 Bierne v. Ray, 275, 413, 434, 435, 504. 
 Bigelow v. Andress, 159, 172. 
 
 v. Ayrault, 51, 58, 276. 
 
 v. Doolittle, 410, 411. 
 
 v. Stringer, 428, 568, 573, 609. 
 Billhofer v. Heubach, 150. 
 Billings v. Billings, 352. 
 
 v. Marsh, 87, 660. 
 
 v. Russell, 351, 352, 36S, 373, 
 374. 375, 381. 
 
 v. Stewart, 115. 
 Billingsley v. Bunce, 609. 
 
 v. White, 458. 
 Billington v. Sweeting, 526. 
 Billson v. Crofts, 647. 
 Billups v. Sears, 113. 
 Bingham v. Weiderwax, 396. 
 Binks v. Rokeby, 219. 
 Binnie v. Walker, 176. 
 Bird v. Andrews, 431. 
 B 
 
 Bird -■. Bolduc, 437. 
 
 Birdsall v. Russell, 672, 673, 074. 
 
 Birdsall W. ,V 1'. Mfg. Co. v. S< hwarz, 
 
 613. 
 Birely's Ex'rs v. Staley, 114. 
 Birkbeck v. Ackroyd, 392. 
 Birmingham D. (1. Co. v. Kelso, 480, 
 621, 622. 
 v. Roden, 480, 621, 622. 
 Birmingham Nat. Bank v. Steele, 302. 
 Bisbing v. Third Nat. Bank, 469. 
 Bishop v. American Preserver's Co., 
 
 724- 
 
 v. O'Connell, 454, 461. 
 
 v. Schneider, 668. 
 
 v. Stebbins, 410, 666, 703. 
 
 t. Warner, 619. 
 Bissell v. Hopkins, 443, 448. 
 Black v. Kuhlman, 374. 
 
 v. Nease, 194, 203. 
 Blackman v. Preston, 406, 419. 
 
 v. Wheaton, 37, 3S, 451. 
 Blackstone Bank v. Davis, 639, 640, 
 
 642, 654. 
 Blaechinska v. Howard Mission, etc., 
 
 .392. 
 Blair v. Finlay, 273. 
 
 v. Illinois Steel Co., 149. 
 
 v. Smith, 88, 69S. 
 Blaisdell v. Cowell, 12. 
 Blake v. Blake, 223, 724. 
 
 v. Boisjoli, 34, 54, 188. 
 
 v. Freeman, 738. 
 
 v. Savvin, 231. 
 
 v. White, 501. 
 Blakeslee v. Rossman, 406, 452, 619, 
 
 630, 632, 633. 
 Blanc v. Paymaster Min. Co., 167, 254, 
 
 255- 
 Blanchard v. Mann, 485. 
 Bland v. Fleeman, 690. 
 Blandin, /;/ re, 524. 
 Blankenship & B. Co. v. Willis, 494. 
 Blant v. Gabler, 370, 450, 459. 
 Bleecker v. Johnston, 432. 
 Bleiler v. Moore, 436. 
 Blenkinsopp v. Blenkinsopp, 100. 
 Blennerhassett v. Sherman, 52, 374, 
 
 375, 406, 412, 418, 419, 420, 422. 
 Blight v. Schenck, 592. 
 Blish v. Collins, 498. 
 Bliss v. Matteson, 535, 597, 711. 
 
 v. West, 379. 
 Block v. Darling, 727, 730, 731. 
 Blodgett v. Chaplin, 426. 
 Bloedorn v. Jewell, 88. 
 Blondheim v. Moore, 333. 
 Bloodgood v. Clark, 116, 331. 
 Bloom v. Moy, 180. 
 Blount v. Costen, 215. 
 Bloxam v. Elsee, 73. 
 Blue v. Penniston, 498. 
 Blum v. McBride, 26. 
 
 v. Simpson, 674, 690.
 
 XV111 
 
 i «] TABLE I >F CASES. [ •"■ ' 
 
 Blumer v. Bennett, 357, 4.78. 
 Bluthenthal :. Magnus, [93, 576. 
 
 man 1 . Halliday, 579, 606, 611. 
 1 h erall, 201. 
 
 ibb, -51. - 
 
 ■ ell, r7r- 
 
 245 ;l r- 
 v. King 
 
 land, S9. 
 
 Richards, 94, 532. 
 264. 
 : . Thompson, 90. 
 Bohannpn v. Combs, 545. 
 Bohn v. Weeks 
 
 ■.■ r. 670. 
 . . Dean, 183, 244. 
 -44- 
 
 Trust Co., 641. 
 Bomar 1 . Means, 215, 254. 
 Bomberger v. Turner, 164. 
 Bonesteel V. Sullivan, 717, 734. 
 Bongard v. Block, 183, 244. 
 Bonsall v. Comly, 93. 
 Bun wit v. Heyman, 579. 
 1 v. Boog, [83 
 
 : v. Worrill, 412, 416, 426. 
 Boone v. Chiles, 512, 669. 
 
 Hall, 229. 
 Boone County v. Burlington & M. R. 
 R. Co., 509. 
 ! . Keck, 259. 
 Boone County Nat. Bank v. Latimer, 84. 
 Booss v, Marion, 389, 562, 563, 609. 
 Booth v. Barnum, 674. 
 
 Punce, 36, 109, 133, 498. 
 v. Carstarphen, 16, 352, 355. 
 
 iark, 238. 
 v. Patrick, 228. 
 V. 1'owcrs, 4S5. 
 V. Warrington, 2S6, 513. 
 Boothliy v. Brown, 454. 
 Boothroyd, In 1 
 Borden v. Doughty, 341. 
 
 Borland v. Mayo, 415. 
 V. Walker, 340. 
 Born v. Shaw, 122, 437, 453. 
 Borst 7. Cony, 541. 
 Boston Music Hall Assoc, v. Cory, 405. 
 twick v, Blake, 4.19, 4S0, 4S1. 
 v. Burnett, 304. 
 
 v. Menck, 1 16, 234, 235, 236, 316. 
 I win. 391, 
 Beers, [67. 
 Bott V. Smith. ' 
 Boud v. Bronson, 402. 
 Bouquet v. I leyman, [94. 
 Bourn 1 
 
 Bouslough v. Bouslough, 183,224, 244. 
 Bowden ■■. Johnson, 234, 2S1, 303, 432. 
 Spellman, 4<;i, 492. 
 . 
 
 I v. A r it- lid 
 
 7 . ( lampbell, 120. 
 
 I ■) 7 . Plan- 
 
 Powen 7'. Clark, 623. 
 
 v. Evans, 670. 
 
 v. Gent, 215. 
 
 v. lioskins, 103. 
 Bowerman v. Bowerman, 487. 
 Powers v. Keesecher, 288. 
 Bowery Bank Case, 615. 
 Bowes v. Foster, 717. 
 Bowlsby 7'. Tompkins, 245. 
 Bowman v. Houdlette, 434. 
 Bownes v. Weld, 142. 
 Bowser v. Cole, 618. 
 Box v. Goodbar, 548. 
 Boyce v. Grundy, 99. 
 Boyd, Ex parte, 116, 140, 281. 
 
 v. Beck, 671, 
 
 v. Boyd, 283, 285 
 
 v. De La Montagnie, 728, 729, 
 730. 
 
 v. Dunlap, 341, 343. 
 
 t\ Ellis, 414, 415. 
 
 v. Hoyt, 251, 260, 289, 291. 
 
 7'. Jones, 496. 
 
 v. Olvey, 230. 
 
 7'. Turpin, 374. 
 Boyer v. Berryman, 475. 
 Boyle r. Zacharie, 517. 
 Boynton 7'. Rawson, 298, 708. 
 
 v. Rees, 698. 
 
 v. \'eazie, 465. 
 Bozman v. Dtaughan, 375. 
 Brace v. Berdan. 391, 
 Brackett v. Griswold, 119, 502. 
 
 v. Harvey, 229, 584, 619, 621, 
 623, 630, 631. 
 
 7 Waite, 437. 
 
 V. Watkins, 93. 
 Bradbury v. Falmouth, 673. 
 Bradford v. Bradford, 670. 
 
 7'. Rice, 518. 
 
 v. Tappan, 717. 
 Bradford's Appeal, 539. 
 Bradley v. Bischel, 564, 612. 
 
 v. Buford, 303, 410, 454. 
 
 v. Converse, 237. 
 
 v. Fuller, 118. 
 
 v. Obear, 45. 
 
 v. Peixoto, 641. 
 
 7'. Ragsdale, 363, 374. 
 Bradner v. Holland, 252, 291. 
 Bradshaw :■. Yates, 730. 
 Bradwell v. Weeks, 81. 
 Brady, Matter of, 518. 
 
 v. Briscoe, 375. 
 Braem v. Merchants' Nat. Bank, 120. 
 Bragg v. Gaynor, 58, 67, 106. 
 Brainerdz/. Dunning, 567,607,610,616. 
 B ram an v. Johnson, 55. 
 
 7'. Stiles, 656. 
 Bramhall v. Ferris, 65, 86, 640, 647, 
 
 654, 660, '>''! . 
 Branch Bank of Decatur v. Kinsey, 394. 
 Branch Bank of Montgomery v. 
 Hodges, 312.
 
 References'] TABLE OF CASES. [are to fages. 
 
 XIX 
 
 Brandies v. Cochrane, 75, 77, 78. 
 Brandon v. Aston, 647. 
 
 v. Robinson, 64, 65, 641, 646, 
 651, 654, 657, 663. 
 Brantom v. Griffith, 471. 
 Brashear v. West, 549, 571, 704. 
 Brasher v. Jamison, 347. 
 Brawn v. Keller, 445, 463. 
 Breathwit v. Bank of Fordyce, 488. 
 Breckenridge v. Taylor, 483. 
 Bree v. Holbech, 514. 
 Breeding v. Davis, 95. 
 Brenan v. Burke, 68. 
 Brennan v. Willson, 554, 562. 
 
 v. Wilson, 433. 
 Brett v. Carter, 625, 626, 627, 628. 
 Brewer v. Connell, 543. 
 Brewster v. Power, 108, 242. 
 Brice v. Lide, 483. 
 
 v. Myers, 37, 45, 437. 
 Brick v. Campbell, 56. 
 Brickett v. Downs, 387. 
 Bridge v. Eggleston, 489, 490. 
 
 v. Ward, 661. 
 Briggs v. Beach, 381. 
 
 v. Merrill, 322, 342, 722. 
 
 v. Mitchell, 355, 535-. 
 
 v. Oliver, 139, 219. 
 
 v. Parkman, 626. 
 
 v. Spaulding, 262. 
 Brigham v. Luddington, 239. 
 
 v. Tillinghast, 585. 
 Brinckerhoff v. Bostwick, 144, 263. 
 Brine v. Insurance Co., 650. 
 Brinkerhoff v. Brown, 14S, 172, 176, 
 
 178, 217, 260, 2S8, 521. 
 Brinks v. Heise, 363, 431. 
 Brinley v. Spring, 428. 
 Brisco v. Norris, 354, 534. 
 Briscoe v. Bronaugh, 20. 
 Bristol Co. Sav. Bank v. Keavy, 485, 503. 
 Brittain v. Crowther, 474, 497, 688. 
 Britton v Lorenz, 592. 
 Broadway Nat. Bank v. Adams, 65, 87, 
 
 614, 655, 658, 660, 742. 
 Brockenbrough v. Brockenbrough, 635. 
 Broderick's Will, 694. 
 Bronson v. Wilmington N. C. Life 
 
 Ins. Co., 253. 
 Brooks v. Caughran, 244. 
 
 v. Hanford, 553. 
 
 v. Peck, 220. 
 
 v. Powers, 449. 
 
 v. Schwerin, 392. 
 
 v. Stone, 100, 148, 159. 
 
 v. Wilson, 147, 151, 311. 
 
 v. Wimer, 609. 
 Brookville Nat. Bank v. Kimble, 524. 
 Broughton v. Broughton, 734. 
 Brouwer v. Harbeck, 481, 482. 
 Brower v. Peabody, 669. 
 Brown, Matter of, 199. 
 
 v. Armstrong, 591. 
 
 v. Ashbough, 123. 
 
 Brown v. Bank of Miss., 172, 17S. 
 
 . . Hates, 154, 218. 
 
 v. Bronson, 135, 543. 
 
 v. Brown, 155, 225. 
 
 v. Campbell, 153, 515. 
 
 v. Chase, 336. 
 
 v. Chubb, 10S, 164, 313, 343. 
 
 v. County of Buena Vista, 511. 
 
 v. Dean, 9. 
 
 v. Farmers' & M. Banking Co., 
 232. 
 
 v. Fitz, 31. 
 
 v. Gilmore, 235. 
 
 v. Guthrie, 54S, 631. 
 
 v. Haven, 2S8. 
 
 v. Heathcote, 230. 
 
 v. Herr, 47^. 
 
 v. John V. Farwell Co., 297. 
 
 v. J. Wayland Kimball Co., 141. 
 
 v. Knox, 577. 
 
 v. Long, 141. 
 
 v. Nichols, 115, 129, 130, 708. 
 
 v. O'Neal, 454. 
 
 v. Piatt, 634. 
 
 v. Rawlings, 387. 
 
 v. Reilly, 737- 
 
 v. Ricketts, 215. 
 
 v. Smart, 517. 
 
 v. Snell, 109, 133. 
 
 v. Spivey, 540. 
 
 v. Texas C. H. Co., 414. 
 
 v. Volkening, 442. 
 
 v. Williamson, 65, 650, 662. 
 
 v. Work, 618. 
 Brown Chemical Co. v. Meyer, 72. 
 Browne v. Hernsheim, 141, 214. 
 Brownell v. Curtis, 231, 304. 
 
 v. Stoddard, 526. 
 Browning v. Bettis, 6S, 116. 
 
 v. Hart, 231. 
 
 v. Morris, 729. 
 Brownsword v. Edwards, 29. 
 Bruen v. Dunn, 669. 
 Bruggerman v. Hoerr, 1S4. 
 Brummel v. Stockton, 454. 
 Brundred v. Patterson Machine Co., 
 
 484. 
 Bruner v. Brown, 22, 312. 
 Bruns v. Stewart Mfg. Co., 339. 
 Brunswick ;-. McClay, 463. 
 Bryan v. Knickerbacker, 660, 661. 
 
 v. Spruill, 275. 
 Bryans v. Taylor, 67. 
 Bryant v. Bryant, 225. 
 
 v. Kelton, 20. 
 
 v. Simoneau, S, 15. 
 
 v. Young, 424. 
 Bryce v. Foot, 589. 
 Buchanan t. Marsh, 100, 152. 
 
 r'. Smith, 481. 
 Buck v. Ross, 237. 
 
 T'. Sherman, S. 
 
 v. Voreis, 113, 114, 375, 473, 506, 
 698.
 
 XX 
 
 . • • n... TABLE OF CASES. [are to pages. 
 
 Buckingham :. Walker, 215, 21S. 
 Buckiand v. Gallup, 561. 
 Buckley 1 . Duff, [93. 
 
 : . I >unn 
 
 r. Wells, 532, 533. 
 
 .- . \\ beeli 
 Buckner 1 2S4, 2S5. 
 
 Stine, 4S2. 
 Budd v. Atkinson, 701. 
 Buell v. Rope, 24. 413, 557. mi. 
 Buffingion v. Harvey, 253, 254. 
 BufTum r. Jones, 434. 
 Buford v. Keokuk N. L. Packet Co., 
 214. 
 
 .- . Shannon, 396. 
 gent, 2SS. 
 Buhl Iron Works v. Teuton, 451, 4(13. 
 Bulger v. !<• sa, 369, 389, 390, 460. 
 Bulkley v. Buffington 
 Bull v. Bray, 377. 
 
 t rriswold, 470. 
 Bullenc v. Smith, 27. 
 Bullis v. Montgomery, 491. 
 Bullitt v. Taylor, 153, 154. 717. 
 Bullock v. Narrott, 1?. 
 
 : . Williams. 444, 618. 
 Bulmer r. Hunter, 536, 537. 
 Bumpas v. Dotson, 434, 435. 
 Bunn v. Ahl, 28, 352, 375. 
 
 v. Bunn, 309, 
 Bunnell v. Gardner, 85, S7, 639, 650. 
 Burbank v. Wiley, 493. 
 Burchinell v. Weinberger, 4=;S. 
 Burdell v. Burdell, 
 Burdick v. Gill, 2nd, 366, 372, 413. 
 
 t. Jackson, 714. 
 
 V. Post. 26. 
 
 Burdsall r . Waggoner, 27S. 
 
 Burford v. Steele. 272. 
 
 Burgert v. Borchert, 7.25, 26,354, 454. 
 
 Burgett v. Burgett, 214. 
 
 Burke 1 . Adams, 214. 
 
 v. Burke, 432. 
 
 v. Smith, 507. 
 Burkey v. Self, 437. 
 Burlen v. Shannon, 367. 
 Burley v. Hartson, I 
 Burti- .- . ( lade, I - 
 Burnett v. Gould, 140, 155. T 7i- 
 Burnham v. Brennan, 24,450.490,674. 
 
 -■. Mi Mil hael, 
 Burns v. Morse, i4'>. 
 Burr v. Beers, Si, -2. 
 
 v. Clement, 23, -<>}. 704. 
 Burras v. Looker, 310. 
 Bun • pie, 183. 222. 
 
 Burt : 7. 220, 272. 
 
 v. Panjaud, v 
 
 v. Timmons, 60, 198. 
 Burtis 7 . I)i' kinson, 
 Burtoi 
 
 1. 58, 223. 
 ■ »son, 536. 
 
 Burton v. Platter, 193, 199. 477. 
 Burtus v. Tisdall, 3, 2S1, 
 Burwell v. Fauber, 680. 
 Busey v. Smith, 741'. 
 Hush v. Collins, 375. 
 
 v. Roberts, 48S, 489, 6S1, 683, 
 686, 691. 
 
 v. Rogan, 717. 
 Bushnell 2. Bushnell. 224. 
 
 r. Eastman, 121. 
 Buswell r. Lincks, 176, 178, 293, 329. 
 Butcher v. Harrison, 229. 
 
 v. Stultz, 423. 
 Butler v. Butler, 544. 
 
 7. Hildreth, 232, 723. 
 
 v. Howell, 459. 
 
 7 . Moore, 44. 
 
 v. Spann, 215, 288. 
 
 v. Watkins, 498. 
 
 v. Wendell, 551. 
 Butterfield v. Stanton, 528. 
 Butteruorth, In re, 203. 
 Button v. Rathbone, 141, 143, 619. 
 Butts v. Peacock, 406. 
 Byrne v. Becker, 357, 558. 
 Byrnes v. Clarke, 392. 
 
 v. Lewis, 306, 307. 
 
 z\ Stilwell, 643. 
 Byrod's Appeal, 214. 
 
 Cadbury 7\ Xolen, 466. 
 
 Cadogan v. Kennett, 34, 37, 38, 42, 46, 
 
 52, 363. 456. 
 Cadu allader v. West, 730. 
 Cady v. Leonard, 275. 
 
 7'. Whaling, 168. 
 Cahill v. Bigelow, 387. 
 Cahn v. Person, 109. 
 Cahoon v. Marshall, 492. 
 Cake v. Pottsville Bank, 370. 
 Caldwell v. Montgomery, 68. 
 Callan v. Statham, 416, 417. 
 Callanan v. Shaw, 336. 
 Callis v. Waddy, 514, 
 Cambridge Valley Bank v. Delano, 
 
 672, 675, 694. 
 Camden v. Stuart, 238. 
 Camp v. Thompson, 451. 
 Campau 7'. Chene, 640. 
 Campbell v. City of Haverhill, 73, 74. 
 
 v. Colorado Coal & I. Co., 714, 
 7"=. 
 
 7'. Dearborn, 736. 
 
 7'. First Nat. Bank, 725. 
 
 7'. Fish, 66. 
 
 v. Foster, 36, 638, 650. 
 
 7'. Genet, <>2, 1 1 5. 
 
 7\ I [amilton, 463, 
 
 7 . James, 74. 
 
 v. Jones, 254, 255. 
 
 7'. Mackay, 287. 
 
 7'. Smith, 8i . 
 
 v. Woodworth, 567, 589, 607. 
 Campion v. Cotton, 383.
 
 References'] TABLE OF CASES. \ are i 
 
 Canal & C. Sts. R. R. Co. v. Hart, 116. 
 Candee v. Lord, 14(1, 194, 475. 
 Cannon v. Norton, 304. 
 
 v. Young, 485. 
 Cansler v. Sallis, 181. 
 Canton v. Dorchester, 720. 
 Cantrell, /;/ re, 619, 623. 
 Capital City Bank v. Parent, 151 
 
 v. Wakefield, 255. 
 Capron v. Porter, 444, 452. 
 Carbiener v. Montgomery, 196. 
 Card v. Walbridge, 229. 
 Carey v. Giles, 46. 
 Carey-Halliday Lumber Co. v. Cain, 
 
 423. 
 Cargill v. Kountze, 281. 
 Carhart v. Harshaw, 92. 
 Caring v. Richmond, 631. 
 Carl v. Smith, 93, 437. 
 Carleton v. Banks, 315. 
 Carlisle v. Tindall, 107, 176. 
 Carll v. Emery, 719, 723. 
 Carnahan v. McCord, 666. 
 
 v. Wood, 492. 
 Carney v. Carney, 492. 
 Carpenter v. Buller, 608. 
 
 v. Carpenter, 206. 
 
 v. McClure, 196. 
 
 v. Muren, 407, 489. 
 
 v. Osborn, 270. 
 
 v. Roe, 191, 192, 199, 208, 361, 
 
 534- 
 
 v. Tatro, 529. 
 
 v. Underwood, 573. 
 Carr v. Breese, 191, 196, 199, 200, 207, 
 208. 
 
 v. Briggs, 354. 
 
 v. Carr, 423, 736. 
 
 v. Effinger, 640. 
 
 v. Gale, 231. 
 
 v. Hilton, 236, 284, 514. 
 
 v. Van Hoesen, 158, 159, 241. 
 Carroll v. Aldrich, 216. 
 
 v. Else, 575. 
 
 v. Hayward, 681, 685. 
 Carson v. Stevens, 523. 
 Carter v. Bennett, 146, 476. 
 
 v. Carter, 647. 
 
 v. Castleberry, 109. 
 
 v. Grimshaw, 206, 358, 361, 376. 
 
 v. Gunnels, 15. 
 
 v. Kerr, 2S8. 
 
 v. Willard, 449, 464. 
 Cartwright v Phcenix, 466. 
 Cartwright's Case, 353. 
 Carver v. Barker, 204, 421. 
 
 v. Peck, 73. 
 Carver Gin & M. Co. v. Bannon, 388. 
 Cary v, Hotailing, 501. 
 Casanova v. Aregno, 520. 
 Case v. Beauregard, roo, 102, 139, 
 140, 141, 142, 145, 166, 178, 
 388, 389. 
 
 v. Gerrish, 712, 
 
 Case v. Phelps, 135, 199, 203. 
 Case Mfg. Co. v. Perkina, 525. 
 Casey v. Janes, 588. 
 Casey's Trust, In re, 047. 
 Cason v. Murray, 556. 
 Cassaday 7 r . Anderson, 170. 
 Cassell v. Williams, 93. 
 Cassidy v. Meacham, 271. 
 Castle v. Bader, 172. 
 
 v. Bullard, 400, 431, 486, 497, 
 498. 
 
 v. Lewis, 160, 175, 
 
 v. Palmer, 31. 
 Caswall, Ex parte, 76. 
 Caswell 7'. Hunch, 740. 
 
 v. Hill, 60. 
 Catchings v. Manlove, 150. 
 Cates v. Allen, 100, ioi, 136, 137, 139. 
 Cathcart v. Robinson, 47. 
 Catlin v. Currier, C20, 623. 
 
 v. Doughty, 115. 
 
 v. Eagle Bank, 615. 
 
 v. Wilcox S. P. Co., 615. 
 Caton v. Mosely, 590. 
 Catt v. Wm. Knabe & Co. Mfg. Co., 
 
 533. 
 Caulfield r. Maguire, 647. 
 Cavanagh v. Morrow, 547. 
 Cavender v, Smith, 414. 
 Cecil Bank v. Snively, 108. 
 Cedar Rapids Ins. Co. v. Butler, 507. 
 Central Bank of Washington -•. Hume, 
 
 56- 57, 54L 542. 
 Central Nat. Bank v. Seligman, 597, 
 
 601, 602, 603, 704. 
 Central R. R. & B. Co. z\ Brunswick 
 
 & W. R. R. Co., 553. 
 Central Trust Co. v. Continental Iron 
 
 Works, 391. 
 Cerf v. Wallace, 233. 
 Chadbourn v. Williams, 530, 534. 
 Chadbourne v. Coe, 139. 
 Chad wick t. Fonner. 4<i"- 
 Chafee v. Blatchford, 583. 
 
 v. Fourth Nat. Bank, 123. 551, 
 614. 
 Chaffee v. Fort, 561. 
 Chalfont v. Grain. ~}. 
 Chamberlain v. O'Brien, 233, 698. 
 
 v. Stern, 459. 
 
 v. Twyne. 412. 
 Chamberiin ?>. Jones, 323. 
 Chambers v. Sallie, 93, 540. 
 
 v. Smith, 610. 
 
 v. Spencer, 80, 437. 
 Chandler r 1 . Hollingsworth, 544. 
 
 ?'. Parsons, 381. 
 
 v. Powers, 506. 
 
 v. Von Roeder. 1 to. 
 Chapin v. Jenkins, 232. 
 
 v. Pease, 717, 720, 724. 
 
 v. Thompson, 500, 551. 
 Chapman v. Banker & T. Pub. Co., 54, 
 215.
 
 XX11 
 
 K«] TABLE OF CASES. [are to pages. 
 
 Chapman v. Emery. I J 
 
 Chark 
 
 Charier : . Ste> ens, - 
 
 Charter Oak Life Ins 
 
 541- 
 
 Cha-v . I-.:. -44 
 
 517. 
 v. 11 11 ti n, 4' i". 
 
 . 41;'-. 
 
 : . Redding, 291. 
 
 . . ■ 
 ■'. 
 Chautauqi.' nk v. Risley, 66, 
 
 [61, 268, 313, 315, 316, 317, 
 
 : . \\ nite, 317. 
 Cheatham v. Hawkins, 22. 460, 609, 
 
 Cheever v. Rutland & B. R. R. Co., 336. 
 
 Chenery v. Palmer, 424, I 
 
 Chester v. Bower. 464. 
 
 Chesterfield v. Janssen, 2S, 98. 
 
 Chew v. Ellingwood. 615. 
 
 Chewett v. Moran, 220. 264 
 
 Chicago Bridge Co. v. Anglo-Amir. 
 
 Pack. Co., 153, [67. 
 Chicago & A. Oil & M. Co. v. U. S. 
 
 Petroleum Co., 336. 
 Chickering v. Hatch, 424. 
 
 v. White. 45-. 
 Child v. Brace, 14-. 179. 
 Childs v. Connor 
 
 v. Hurd. 394. 
 
 v. Kendal 
 Chillingwortb v. Pastern Tinware Co., 
 
 474- 
 Chipman v. McClellan, 4S1. 
 
 r . Peabi "lv. 124. 
 Chittenden v. Brewster. 1 = 5. 
 Chophard v. Bayard, 619. 
 Choteau v. [ones, 22 
 Christian r : . Atlantic & \. C. R. R. 
 Co., 215. 249. 
 1 1 wood, 323. 
 Christie v. Bridgman. 416, 
 Christy v. Scott 
 Chubb v. Upton 
 Church v. Chapin, 437, 476. 
 < Ihurch, ' 97. 
 
 V. Muir. 720, 726. 
 Churchill v. Hill, 610. 
 
 Wells, 2<m,, 210. 
 
 1 ly , . Rhodes, 'it . 
 1 in' Bank v. Bholen, 308. 
 
 William-. -.,_), 
 
 Citizens' Nat. Bank 1 272,426. 
 
 City Bank v. Blackmore 
 
 -.-. Westbury, I 
 City Nat. Bank v. Bridgers, 434, 436. 
 i , dricl 
 
 I l.imilton. 187, 204, 2' 
 49>i 533, 
 
 City of Pexinc;ton v. Butler, 263. 
 City of Newark r. Punk, 58,67. 
 Clarlin 7. Ambrose, 529. 
 
 v. Ballance, 492. 
 
 v. Claflin, 
 
 7'. Frenkel, 123. 
 
 v. Gordon, 298, 709. 
 
 7'. Lenheim, 672. 
 
 v. Lisso, 317. 
 
 7'. McDermott, 122, 140, 153, 154. 
 
 V, Mess. 197. 
 
 v. ( tstrom, 82. 
 
 7'. Rosenberg, 454. 
 
 V. Smith. 307. 
 Clagett v. Gibson, 244. 
 Clan Ranald v. Wyckoff, 75. 
 Clapp v. Uittman, 594. 
 
 7'. Ely, 408. 
 
 7'. Ingraham, 75. 
 
 v. Leatherbee, 244. 
 
 v. Smith, 67. 
 Clark 7'. Andrews, 710, 713. 
 
 v. Anthony, 146, 476. 
 
 v. Beecher, 326, 543. 
 
 7. Bever, 131, 237. 
 
 v. Chamberlain, 358, 361. 
 
 v. Clark, 521. 
 
 7'. Clough, 224. 
 
 r. Depew, 188, 42G. 
 
 v. Dickinson, 560. 
 
 v. Douglass, 37, 146, 40S, 476. 
 
 7'. Finlon, 423. 
 
 v. Foxcroft, 146, 242. 
 
 7 p . French, [96. 
 
 v. Gibson, 3S6. 
 
 7. Hougham, 514. 
 
 7'. Howard, 81. 
 
 7. Hyman, 625, 62S. 
 
 7'. Killian, 7, 206, 208. 
 
 v. Krause, 294, 329, 346, 414, 
 432. 435, 46S. 474, 475, 502, 
 542. 704- 
 
 v. Lee, 461. 
 
 v. Morrell, 365. 
 
 v. Robbins, 574. 
 
 v. Stanton, 591. 
 
 v. Van Riemsdyk, 432. 
 
 v. Wilson, 491. 
 
 v. Wise, 410, 411. 
 Clarke v. Boorman's Ex'rs, 511. 
 
 :•. I.aird, 139. 
 
 7. Rist, 298. 
 
 7. White, 308, 501. 
 Clarkson v. De Pevstcr, 149, 157, 176, 
 
 17S, 218. 
 Clary 7-. Frayer, 453. 
 Clason 7'. Morris, 304. 
 Clay v. McCally, 379. 
 
 -■. Smith, 1S5. 
 
 v. Walter, 383. 
 
 7'. Williams, 726. 
 Clayton v. Brown, 437. 
 
 7'. Johnson, 577. 
 Cleghorn v. Say re, 595.
 
 References] TABLE OK CASKS. [ar 
 
 XXI 11 
 
 Clemens v. Brillhart, II. 
 
 Clement v. Cozart, 1S1, 1S7, 190, tg6. 
 
 Clements v. .Moore, 32, 37, 38, 44, 52, 
 84, 30S, 310, 320, 321, 341, 345, 346, 
 357, 432, 479, 490, 681, 689, 692. 
 
 Cleveland v. Chambliss, 166. 
 
 Clews v. Kehr, 489. 
 
 Clift v. Moses, 345, 346. 
 
 Clinton Hill L. & M. Co. v. Strieby, 
 
 425- 
 Clough v. Thompson, 231. 
 Clow v. Woods, 453, 463, 466. 
 Clute 7'. Kitch, 467. 
 
 v. Newkirk, 46S. 
 Coates v. Day, 264. 
 
 v. Gerlach, 406, 419. 
 Coats v. Donnell, 615. 
 Cobb v. Day, 11. 
 Coburn z: Pickering, 24, 446, 449, 619. 
 
 v. Proctor, 685, 686. 
 Cochran v. Wiechers, 268. 
 Cockell v. Taylor, 247. 
 Cocks v. Varney, 160. 
 Cockshott v. Bennett, 711, 
 Coe v. Whitbeck, 150. 
 Coffey v. Norwood, 264. 
 Coffin v. Day, 390. 
 
 v. Douglass, 564, 607. 
 Cofiin v. Kelling, 551. 
 Cogburn v. Pollock, 332. 
 Coghlan v. South Carolina R. R. Co., 
 
 123. 
 Cohen v. Knox, 382, 530. 
 
 v. Meyers, 103, 332. 
 
 v. N. Y. Mutual Life Ins. Co., 
 166. 
 
 v. Wolff, 217. 
 Cohn, Matter of, 233, 591, 593. 
 Cohn v. Goldman, 273. 
 
 v. Ward, 394, 592, 612. 
 Coiron v. Millaudon, 343, 346. 
 Colbern v. Robinson, 425. 
 Colby v. Peabody, 69. 
 Cole v. Malcolm, 349. 
 
 v. McGlathry, 285. 
 
 v. Millerton Iron Co., 237, 268, 
 359, 416, 616. 
 
 v. Tyler, 18, 161, 192, 313, 314, 
 
 317, 335- 
 
 v. Varner, 194. 
 
 v. White, 445, 456, 457. 
 
 ?•. Yancey, 407. 
 Coleman, In re, 646. 
 
 v. Burr, 13, 16, 18, 19, 23, 355, 
 369. 377, 392, 568, 584, 695. 
 Coley v. Coley, 392, 407, 434. 
 Colgan v. Jones, 341. 
 Colie v. Jamison, 230. 
 Collier v. Davis, 570. 
 
 v. Hanna, 363, 389. 
 Collingridge v. Paxton, 60. 
 Collingsworth v. Bell, 618'. 
 Collins, In re, 143. 229. 
 
 v. Carlile, 391. 
 
 Collins v. Myers, 451, 619, 
 
 v. Nel 
 
 r. Shaffer, 132. 
 
 v. Taggart, 468. 
 
 v. Thompson, 303. 
 Collinson v. Jackson, 146, 254, 295, 
 
 316, 387, 476. 
 Collumb v. Read, 62, 321, 666. 
 Colman ~\ Dixon 
 Colombine v. Penhall, 536, 537. 
 Columbia Bank 71. facobs, 424. 
 Columbus Watch Co. v. Hodenpyl, 
 
 147. '5". 47"- 
 Combs r. Watson, 164. 
 Comegys v. X'asse, 230. 
 Comer v. Allen, 382. 
 Comey v. Pickering, 666. 
 Comly 7'. Kisher, 465. 
 Commercial Bank v. Meach, 150. 
 Commercial Nat. Bank v. Nebraska 
 
 State Bank, 54S. 
 Commonwealth v. Duffield, 76, 6O4. 
 
 v. Evans, 367. 
 Commonwealth Ins. & T. Co. v. 
 
 Brown, 525. 
 Comstock v. Rayford, 42S, 433. 
 Comyns ?\ Riker, 719. 
 Conard v. Adriatic Ins. Co., 391. 
 Conde v. Hall, 340. 
 Cone v. Cross, 340. 
 
 7'. Hamilton, 126. 
 Confer v. McNeal, 497. 
 Conger v. Lowe, 644. 
 Conkling v. Shelley, 630. 
 Conly v. Priedman, 458. 
 Connah v. Sedgwick, 593. 
 Conn. Mut. L. I. Co. t. Smith. 414, 
 
 432, 515, 692. 
 Conover v. Beckett, 4S1. 
 Conro v. Port Henry Iron Co., 130, 
 
 217, 220. 
 Conrou' 7'. Little, 547. 
 Consolidated T. L. Co. v. Kansas City 
 
 Varnish Co., 167. 
 Constable v. Hardenbergh, 307, 610. 
 Constant t\ University of Rochester, 
 
 12, 357- 
 Continental Trust Co. v. Wetmore, 86. 
 Converse 7'. Hartley, 210. 
 
 v. Sickles S4, 561. 
 Conway, Ex parte, 7, 9, 615. 
 
 v. Edwards, 452, 466. 
 Cook v. Bennett, 619. 
 
 7'. Holbrook, 538. 
 
 v. Hopper, 474. 
 
 v. Johnson, in, 181, 187. 
 
 v. Ligon, 185. 
 
 7'. Lindsey. 284. 
 
 7'. Lowry, 85. 
 
 7'. Mason, 4S7. 
 
 v. Moffat, 516. 
 
 v. Scott, 93. 
 
 7'. Swan, 133. 
 
 7'. Tibbals, 271, 279.
 
 XXIV 
 
 ] 'ABLE I '1 CASES. [are towages. 
 
 : . Tullis, S "• 
 
 221, 357, 47". 
 
 I lenek) . 
 
 \ in. 361, 4'". ' 
 : 
 I >avison, 413, 
 ( ialbraith, 12. 
 i .urn. 73. 
 t . Lee, 513. 
 . Reynolds, 475. 
 . Wyatt 
 
 Coope 
 
 . Middle ton, 11. too, 258, 3S0. 
 C < > r ! > i 1 1 : . Cutcheon, 
 Bean, 1 13. 
 I et 1 . Williams. 244. 
 
 er, 4 1 16. 
 C rev [( 18. 
 
 Curl-.-;; :. Radcliffe, 42. 417, 419. 
 Cornell, Matter yj, 553, 561, 
 
 588. 
 v. R.ulway. 6, 97, 176, 255, 264, 
 
 Corning v. Fowler, 60. 
 
 - . McCullough, 269. 
 v. White, 1 j 1. [48, 709. 
 Cornish v. I >ew - 
 Cornwell v. Lee, 
 
 Cortland Co. v. Herkimer Co., 496. 
 Cosby v. Ferguson, 6 
 
 • v. Mayor, etc., Si, 
 Cottingham, Succession of, 31. 
 
 n v. Hart, 
 Cottrell v. Moody, 103. 
 rell's Appeal. 348. 
 Coulter v. Lumpkin. 
 
 nty of Morgan v. Allen. 131. 
 iv of Warren v. Man y, H)-. 
 Coursey v. Morton, 1 |2, 553 
 
 = 74- ''"■)■ 6l 1. 
 Courienay v. Wright, 542. 
 
 I ilumbia Powder M fg. ( o., 
 
 Coutts v. Acworth, 77. 
 nhovan v. 1 Ian. 27. 
 : wick, 72. 
 ell, 7. 
 Cowell v. Spring 
 
 Cowling 7 . 689. 
 
 ' 401. 
 
 Einspahr, 499. 
 
 1 ley. 426, 
 Gruv< 1 . 96, 07. 
 7. Miller, 
 P 
 
 ~ h ropshire, 94. 
 Wilder, 31 . 92, 545. 
 
 v. W 
 
 .- Wile nx, 10^, 289. 
 I Kadli 
 
 I mil hael, 168. 
 
 Craig v. Fowler, 402. 
 
 7. Hone, 661. 
 ( Iraig's Appeal, 469. 
 
 ("ram :. .Mitchell, 551, 592, 593. 
 Cramer v. Bloi id, 320. 
 
 v. Reford, 203, 530. 
 Crandall v. Brown, 457, 632. 
 
 7. Lincoln, 131, 237. 
 Crane 7'. Bunnell, 113. 
 
 7 . Stickles, 381. 
 Cranson v. Smith, 125. 
 Cranstown 7'. Johnston, 304. 
 Crapo v. Kelly. 615. 
 Crapster v. Williams, 433. 
 Crary v. Goodman, 31. 
 Craven v. Brady, 647. 
 Craver v. Miller, 415. 
 Crawford v. Andrews, 483. 
 
 v. Beard, 340. 
 
 7. Berry, 484. 
 
 v. Davis, 446. 
 
 v. Kirksey, 7, 9, 187, 293, 304, 
 367, 416, 426, 430, 448, 451, 
 
 703. 
 
 7'. Lehr, 224, 717. 
 
 v. Logan, 20S, 537. 
 
 -•. Lundy, 640. 
 
 7 . N'eal, 462, 480. 
 
 7'. Ross, 338. 
 Credland v. Potter, 31. 
 Cresswel! ?\ McCaig, 387. 
 Cribb 7'. Morse, 3S9. 
 Crim 7'. Kessing, 476. 
 
 v. Walker, 140, 153, 154. 
 Crippen v. Hudson, 14S, 149, 150, 157, 
 
 171, 177. 271. 
 Crocker v. Bellangee, 736. 
 
 v. Craig, 22S. 
 Crockett 7'. Phinney, 341. 
 Croft v. Arthur, 536. 
 
 v. Townsend, 4. 
 Crompion v. Anthony, 141. 166. 
 Crook <'. Jadis, 6S7. 
 
 7'. Rindskopf, 8, 47, 3S9, 500, 
 562, 605, 606, 609. 
 Crooke ?: County of Kings, 77, 7S, 663. 
 Crooks 7. Stuart, 445. 
 Cropsey v. McKinney, 140. 
 Crosby 7'. Baker, 94. 
 
 v. Hillyer, 554. 
 
 v. Taylor, 350. 
 Cross 7'. Brown, 224, 227. 
 
 :•. Truesdale, 81. 
 Crouse ~-. Frothingham, 66, 67, 225 
 
 229, 232, 318, 4S0. 
 Crow . Andrew s, 9, 
 
 7'. Beardsley, 24, 26. 
 
 7'. Coons, 517. 
 
 v. Red River Co. Bank. 630. 
 Crowinshield t. Kittridge, 707, 722. 
 Crumbaugh v, Kugler, 437. 
 Crummen v. Bennet, 31, 90. 
 Cubbedge v. Adams, 100. 
 Cumming 7\ Fryer, 46.
 
 References'] TABLE OF CASES. [are i 
 
 Cumming v. Mayor of Brooklyn, 328. 
 Cummings v. McCullough, 374. 
 Cummins v. Griggs, 454. 
 
 -', Hurlbutt, 13. 
 Cunningham v. Dwyer, 7, 395. 
 
 v. Freeborn, 23, 30S, 369, 568 
 584, 616. 
 
 v. Norton, 19, 348, 485. 
 Curd v. Lackland, 105. 
 Curran v. Olmstead, 273. 
 Currie v. Hart, 592. 
 
 v. Misa, 373. 
 Currier v. Sutherland, 31, 93. 
 Curry v. Lloyd, 114, 
 
 v. McCauley, 421. 
 Curtain v. Talley, 577. 
 Curtin v. Isaacsen, 448, 451. 
 Curtis v. Fox, 192, 328, 
 
 v. Leavitt, 37, 205, 278, 359, 4S2, 
 576. 
 
 v. Moore, 497. 
 
 v. Valiton, 357. 
 
 v. Wortsman, 526. 
 Cushwa v. Cushwa, 726 734. 
 Cutcheon v. Corbitt, 321. 
 Cutler v. Tuttle, 720. 
 Cutter v. Copeland, 457, 459. 
 
 v. Griswold, 108. 
 
 v. Hume, 601, 612, 704. 
 
 v. Pollock, 703. 
 Cutting, Ex parte, 476. 
 
 v. Cutting, 76, 77, 85, 650, 663, 
 742. 
 
 v. Jackson, 449. 
 Cuyler v. Ensworth, 223. 
 
 v. McCartney, 490, 495, 496, 557, 
 564, 59 1 - 
 
 Daggett B. & H. Co. v. Bulfer, 392. 
 Dahlman v. Jacobs, 140. 
 Dale v. Roosevelt, 738. 
 Dalglish v. McCarthy, 365. 
 Dalpay, Matter of, 123. 
 Dalton v. Currier, 600. 
 
 v. Stiles, 708. 
 Damon v. Bryant, 520. 
 Dana v. Haskell, 177. 
 Danbury v. Robinson, 667. 
 Danby v. Sharp, 431, 439, 486. 
 Dance v. Seaman, 25. 
 Danforth v. Beattie, 31, 
 
 v. Dart, 674, 687. 
 Daniel v. Vaccaro, 8. 
 Daniels v. Eldredge, 655. 
 
 v. McGinnis, 495. 
 Danjean v. Blacketer, 428. 
 Dannmeyer v. Coleman, 694. 
 Danzey v. Smith, 227. 
 Darby v. Gilligan, 389. 
 Dargan v Waring, in, 176. 
 Darling v. Rogers, 19, 610. 
 Darvill v. Terry, 365. 
 Daugherty v. Daugherty, 410. 
 Davenport v. Cummings, 26. 
 
 Davenport r\ Foulke, 619. 
 
 v. Kelly, 11?. . 
 
 v. Wright, 4'>; 
 David 7'. Birchard, 688, 692, 706. 
 Davidson r. Burke, 129, 381. 
 
 v. Graves, 384, 536. 
 
 ?'. Jones, 395. 
 
 7'. Little, 415. 
 Davis v. Bigler, 444, 453, 462. 
 
 v. Bonney, 708. 
 
 7'. Briggs, 391. 
 
 v. Bruns, 153. 
 
 v. Clayton, 304. 
 
 v. Cornue, 475. 
 
 v. Davis, 543. 
 
 v. Dean, 153. 
 
 v. Fredericks, 532. 
 
 v. Garrison, 357. 
 
 v. Getchell, 414. 
 
 v. Graves, 320 725. 
 
 v. Howard, 3S7, 604. 
 
 v. Leopold, 321, 340, 342, 707. 
 
 v. McKinney, 107, 187. 
 
 v. Ransom, 619. 
 
 v. Schwartz. 49, 52, 375, 402, 
 406, 417, 425, 435, 443, 593, 
 740. 
 
 7'. Sharron, 67. 
 
 v. Stern, 489. 
 
 v. Swanson, 223, 717, 724. 
 
 v. Turner, 37, 443, 445, 440, 449, 
 
 451, 455, 456, 459- 
 Davis S. M. Co. v. Dunbar, 405. 
 Davy v. Garrett, 275. 
 Dawes v. Cope, 453. 
 Dawley v. Brown, 32, 138, 317. 
 Dawson v. Coffey, 140. 
 
 v. Xiver, 414. 
 Day v. Cole, 416. 
 
 v. Cooley, 51, 194, 196, 198, 209, 
 229, 231. 
 
 v. Goodbar, 418, 421. 
 
 v. Washburn, 710. 
 Dayton v. Borst, 237, 240. 
 Dean, Matter of, 561, 588. 
 
 v. Negley, 29, 3S6. 
 
 v. Skinner, 4S0. 
 De Armond v. De Armond, 543. 
 De Berry v. Wheeler, 523. 
 De Camp v. Alward, 615. 
 
 v. Dempsey, 661. 
 Decker v. Decker, 107, 146, 147. 
 Deering v. Tucker, 640. 
 
 v. Washburn, 454. 
 Deerfield v. Nims, 253. 
 De Farges v. Ryland, 394. 504, 537, 538. 
 De Forest v. Bacon, 
 Degnan 7 p . Farr, 524. 
 Degraw z. Clason, 87. 
 Dehorty v. Jones, 640. 
 Deitrich 7\ Hutchinson, 704. 
 Delany v. Mansfield, 336. 
 Delashmut v. Trau, 92. 
 Delaware v. Ensign, 415, 417, 632.
 
 XXVI 
 
 TABLE Ol CASES. [are to fiages. 
 
 v. Hyland, - 
 De M '90. 
 
 Demarest v. H 
 
 rerhune, 434. 4; 
 1 1 meritt v. Mi 
 Dempscy r. Gardner, 440. . 
 Denike v N. V. R. Lime Ov: C. Co., 
 
 .. 
 Denman v. Campbell, 4^3. 
 Dennick v. Railroad Co., 269. 
 Deni si Arnold, 1 27. 
 Denn 
 Denny r . Bennett, ig - - 
 
 more v. Tomer, 13, 452. 
 Dent . k>, 7 i<>. -17. 
 
 -4- 
 Denton : . Ontario Co, Nat. Hank. 557. 
 Department of Parks. .Matter of, 32. 
 De P 641. 
 
 Nat, Hank v. Wickham, 70S. 
 v. Weyrich, 90, 02, 574. 
 De Ruyter 1 . St. Peter's Church, 615. 
 Des I Irisaj v. 1 logan, 145. 
 
 : . Wood : 4'- 
 
 Des Moines ec M. R. Co. v. Alley. 279. 
 Detroit, etc.. Rolling Mills v, Led- 
 
 widge, 140. 
 Deutsch v. Reilly, 160. 
 Devoe v. Brand: 
 Devol v. Mcintosh, Bi, 82. 
 1 1 11 v. Brownell, 309. 
 Devonshire v. Gauthreaux, 451. 
 De Votie v. McGerr, 301, 534. 
 De Walt v. Doran, 495. 
 Dewey v. K el ton, B3. 
 
 v. Long, 107. 
 
 V. Mover. 140, 195, 215,21s, 229, 
 
 495- 
 ng v. Durant, 127. 
 
 De Witt v. Van Sickle, 6S0, 689, 692. 
 De Wolf v. Sprague Mfg. Co., 2SS, 
 
 291. z ':l- 58l, ; -7- 
 Dexter v. McAfee, 7. to, 274. 
 
 v. Smith. 
 Dick v. Hamilton, 61, 200, 301. 
 
 :■. Lindsay. 47' », 
 
 v. Piti hford, 64, 657, 659. 
 Dicki •: 51 m . Benham, '104. 
 
 . I illinghast, 671 . 
 Dickinson r. Hankers' Loan, etc., Co., 
 
 273. =74- 
 v. Burrell, 247. 
 cson v. McLarney, 419. 
 Diefei .■ >rf v. Spraker, 214. 
 1, 60. 
 
 r, 93. 
 
 7i 534- 
 Dillman v. Nadelhoffer, 172, 176, 527. 
 I > in v. Anderson, 370. 
 Dilworth v. Curts, 323. 
 Dimmoi k v. Bixby. i"i. . 
 Dimoi 1 ' . ?i8. 
 
 Dimon 1 1 
 
 v. Hazard . 589. 
 
 Ditman v. Raule, 193, 197, 453. 
 Divver v. McLaughlin, 407. 
 Dix v. Briggs, 150. 
 
 .- . Van Wyck, 247. 
 Dixon 7: Hill, 61 : 
 Doak v. Brubaker, 4f2, 464, 465. 
 Dobson v. Pearcc, 471 
 
 V. Snider. 406, 418, 420, 421. 
 Dockray v. Mason, in, 255, 264. 
 Dodd v. Adams, 63. 
 
 v. Gaines, 6SS. 
 
 v. Levy, 140, 143, 16S. 
 
 v. McCraw, 36s. 437. 
 Dodge v. Freedman's Saw & Trust 
 Co., 490, 733. 
 
 v. Goodell, 495. 
 
 v. Griswold, 160. 
 
 v. Pyrolusite Manganese Co., 
 332. 
 
 V. Wellman, 423. 
 Doe (if. Grimsby) v. Ball, 229. 
 
 (</. Abbott) v. Hurd, 717. 
 
 (d. Mclntyre) v. Mclniyre, 640. 
 
 \d. Davis) v. McKinney, 107, 187. 
 
 v. Routledge, 380. 
 
 (</. Bland) v. Smith, 520. 
 
 v. West, 469. 
 Doebler's Appeal, 640. 
 Doerfler v. Schmidt, 272. 
 Doherty v. Holliday, 217, 709. 
 Dolin r'. Gardner, 394. 
 Dollard v. Taylor, 116, 331. 
 Dominguez v. Dominguez, 507. 
 Donalds v. Plumb, 659. 
 Donaldson v. Farwell, 104, 230. 
 Donley v. McKiernan, 270, 474. 
 Donnebaum v. Tinsley, 376. 
 Donnelly v. West, 236. 
 Donovan t. Dunning, 25, 33, 104, 259, 
 
 634. 
 v. Finn, 41, 68. 
 Doran v. Simpson, 156. 
 Dorr v. Beck, 416, 666. 
 Dorsett ?•. Dorsett, 647. 
 Dorsey :■. Smithson, 232. 
 Dorsev Machine Co. v. McCaffrey, 285, 
 
 286. 
 Dortic z'. Dugas, 100. 
 1 (osi In- v. Nette, 199. 
 Doucet v. Richardson, 449. 
 Dougherty v. Cooper, 482, 667. 
 Doughten v. Gray, 415. 
 Doughty v. Miller, 717. 
 Douglass, In >-,-. 390. 
 
 v. Huston, 709. 
 Douglass Merch. Co. v. Laird, 402, 
 
 612. 
 I kmthitt v. Appelgate, 415. 
 Douw v. Shelden, 55. 
 Dow v. Berry, (14. 
 
 -.-. Platner, 62, 573, 574. 
 Dowel! v. Appelgate, 393. 
 I (owner v. Rowell, 311. 
 Downs v. Kissam, 425.
 
 References] TABLE OF CASKS. [are to pages. 
 
 XXV11 
 
 Dows v. McMichael, 227. 
 Doyle v.. Peckham, 231. 
 Dozier v. Matson. 519. 
 Drake v. Paulhamus, 704. 
 
 7'. Rice 40, 43, 51, 58, 67, 106, 
 122. 
 Dresher v. Corson, 412. 
 Dreutzer v. Bell, 31, 88. 
 Drexel v. Berney, 24S. 
 Drexler v. Tyrrell, 712. 
 Dreyfuss v. Seale, 475. 
 Dringer v. Receiver of Erie Ry., 9. 
 Drinkwater v. Drinkwater, 722. 
 Drucker v. Wellhouse, 5S9. 
 Drummond v. Commissioners, 132. 
 
 v. Couse, 357. 
 Drury v. Cross, 346. 
 
 v. Roberts, 338. 
 
 v. Wilson, 703. 
 Drysdale v. Piggott, 542. 
 Dubois v. Cassidy, 115. 
 Dudley v. Congregation, etc., St. 
 Francis, 293. 
 
 v. Danforth, 359, 365, 557. 
 
 v. Dudley, 544. 
 Duffin v. Furness, 40. 
 Dugan v. Massey, 545. 
 
 v. Trisler, 183. 
 
 v. Vattier, 232. 
 Dull v. Merrill, 88. 
 
 Dummer v. Corporation of Chippen- 
 ham, 305. 
 Duncan v. Custard, 316. 
 
 v. Roselle, 539. 
 Duncan's Appeal, 544. 
 Dundas v. Bowler, 135. 
 
 v. Dutens, 67. 
 Dunham v. Byrnes, 234. 
 
 v. Cox, 271. 
 
 v. Griswold, 354. 
 
 v. Waterman, 21, 319, 548, 568, 
 580, 583, 584, 631. 
 Dunlap v. Bournonville, 434. 
 
 v. Hawkins, 189, 191, 208, 376, 
 
 377- 
 Dunlevy v. Tallmadge, III, 141, 142, 
 
 148, 149, 159, 172. 
 Dunn 7\ Chambers, 310 
 v. Dunn, 190. 
 v. Whalen, 725. 
 Dunning v. Mead, 619. 
 Dunphy v. Kleinsmith, 99, 326, 328, 
 
 405. 
 Dupuy v. Gibson, 219. 
 Durand v. Hankerson, 262. 
 Durant r. Pierson, 563. 
 Duress v. Horneffer, 529. 
 Durian v. Central Verein, 56, 542. 
 Dutcher v. Swartwood, 632, 633. 
 Dutchess Co. Mut. Ins. Co. v. Van 
 
 Wagonen, 554, 602, 613. 
 Duttera v. Babylon, 526. 
 Dutton t. Jackson, 242. 
 Duvall v. Rollins, 92. 
 
 Dwight v. Germania Life Ins. Co., 
 
 306. 
 Dyer v. 1 lomer, 717, 722. 
 
 v. Tayloi . 
 Dygert v. Remerschnider, 186, 192, 
 
 194, 377, 37'J. 383, 537, 54i. 
 
 Eadie v. Slimmon, 56. 
 Fads v. Mason, 324. 
 
 v. Thompson, 542, 
 Eagle Fire Co. v. Lent, 642. 
 Eames v. Dorsett, 193. 
 Earl of Chesterfield r. Janssen, 28, 98. 
 Early v. Owens, 1S7. 
 Earnshaw t\ Stewart, 426. 
 Easterly r. Keney, 653, 654, 659. 
 Eastlake v. Jordan, 660. 
 Easton Xat. Bank v. Buffalo Chem. 
 
 Works, 271. 
 Eastwood ?'. Brown, 446. 
 Kasum 7'. Pirtle, 415. 
 Eaton ?'. Perry, 736. 
 Ecker v. Lafferty, 211. 
 
 7 r . McCallister, 371. 
 Eckman 7:. Munnerl) - n, 620. 
 Eddy 7'. Baldwin, 482. 
 Ede v. Knowles, 59, 195. 
 Edelsten v. Yick. 73. 
 Edgell v. Hart, 369, 472, 619, 621, 622, 
 623. 
 7'. Haywood, 129. 
 Edgerly v. First Xat. Bank, 419. 
 Edgington's Trusts, .AV, 647. 
 Edmeston v. Lyde, 51, 58, 67, 130, 148, 
 
 217, 251. 
 Edmonson 7'. Meacham, 31. 
 Edmonston v. McLoud, 115, 708. 
 Edmunds v. Mister, i2>, 474. 
 Edson 7'. Cumings, 146. 
 
 v. Hayden, 539. 
 Edwards v. Currier, 368, 371. 
 
 7'. Dickson, 452. 
 
 v. Entwisle, 61, 209, 539, 540. 
 
 v. Harben, 446, 619. 
 
 v. McGee, 184, 213. 
 
 v. Mitchell, 555. 
 
 7'. Reid, 94, 367. 
 
 7'. Stinson, 34. 
 Egbert v. Baker, 551. 
 Egerv v. Johnson, 6, 637, 665, 667. 
 
 6m. 
 Ehrisman ?•. Roberts. 20, 574. 
 Eicks v. Copeland, 50 r. 
 Eigleberger 7 r . Kibler, 1S8, 507. 
 Eilers v. Conradt, <;4. 
 Eisner v. Heilman, 719. 
 Eldria^e 7'. Phillipson, 7"4. 
 Elias 7\ Farley, 66, 574. 
 Eliot 7'. Merchants' Exchange, 70, 71. 
 Elizabethtown Saw Inst. ■<■. Gcrber, 
 
 142. 
 Ellett ?'. Newman, 331. 
 Ellington 7\ Currie, 720. 
 Elliott 7'. Bently. 529, 539.
 
 X X V 1 1 1 
 
 <*] TABLE OF CASES. [are to pages. 
 
 tt :•. Pontius. 21?. 
 Stoddard, . 
 Elliott's Ex'rs' Appeal, 541. 
 Ellis :•. 1 [iggins, 717. 
 
 : . 1 [orrman, 674. 
 
 . . McHenry, 51 8. 
 Valentine, [9. 
 Whitlock, 46. 
 Ellison i Most - 
 Ellsworth -. Cook, 66. 
 
 : Phelps, 630. 
 Elme Da < 247. 
 
 Elmendorf v. Taylor, 512, 516. 
 Elmer v. Welch. 4 : . ; 
 Elmon - ir, 216. 
 El well v. Johnson. 270. 
 Ely ' 609. 
 
 Emans - . Emans, 219. 
 Embry :. Palmer, 154, 511. 
 Embury v. Klemm, 436. 
 Emerson v. Badger, 71. 
 
 v. Bemis, 24. 1-7, 540. 
 
 v. Opp, t88, 5 19. 
 
 v. Senter, 558, 563. 579. 5§o. 
 Emery v. Van Syckel, 647. 
 
 v. Vount, 272. 
 Emigrant Ind. Sav. Hank v. Roche, 
 
 ,. ??4, uoS. 
 Emma Silver Min. Co. v. Grant, iS. 
 Emmerich v. Hefferan, 377. 
 Emmons v. Barton, 226. 
 
 Bradley, 424. 
 Emonds v. Termehr, 414. 
 Enders v. Swayne, 4 1 •'> 
 England t'. Adams, 104. 
 
 v. I )• iwns, 544. 
 
 v. Russell, 137, 139. 
 English v. Friedman, 565. 
 Engraham v. Pate, 30, 400. 435, 436, 497. 
 
 . 'Tuttle, 493. 
 Erb v. Cole, 7 
 
 v. West, 387, 562. 
 Erdall v. Atwood, 234. 4- = 
 Erfort v. Consalus, 267, 501. 
 Erickson v. Paterson, 63. 
 
 linn, 12?, 285, 2S6, 315, 513. 
 Frn^t v. Shinkle, 
 Estabrook v. Messersmith, 231. 
 1 , 254, 316. 
 
 Guntei 565, 593, 610, 
 
 r . I lowland, 223, 22 4- 
 
 v. Wil( ox, in. i - i. [55, 1 56, [65, 
 171. 1 77 
 :< k v. Caillaud, 23, : . 
 mg, 14^1. 
 Ether; sperry, 472 
 
 Ettlinger 1 . Kahn, 5 
 I Bolles, 185. 
 
 Bicknell, 
 r . I [amilton, 
 
 v. Hill, 140, [65, 17'.. 
 v. Tones, \ 1 2 
 
 • . 1 • -44- 
 
 Evans v. Rugee, 539. 
 
 v. Wall, 660. 
 
 v. Warner, 604. 
 Evans Co. v. Reeves, 689. 
 Everett v. Raby, 166. 
 Everingham v. Vanderbilt, 318. 
 Everitt v. Everitt, 77. 
 Every v. Edgerton, 46S. 
 Ewing v. Handley, 224. 
 
 v. Runkle, 357. 
 Exchange Bank of St. L. v. Rice, 82. 
 Eyre v. Potter, 294, 330. 
 Eyston, Ex parte, 647. 
 
 Failey v. Stockvvell, 591. 
 Fairbanks v. Antrim, 47. 
 Fairchild v. Lynch, 569. 
 Fairfield v. Baldwin, 409. 
 ^Fairfield Bridge Co. v. Nye, 449. 
 Fairfield Packing Co. v. Kentucky 
 
 Jeans Clothing Co., 594. 
 Falconer v. Freeman, 160, 175. 
 Falk v. Janes, 239. 
 Falkner v. Leith, 394. 
 Fanshawe v. Lane, 579. 
 Fargo v. Ladd, 724. 
 Farley v. Carpenter, 675, 676, 678, 680. 
 
 v. Kittson, 302, 303. 
 Farlin r\ Sook, 324. 
 Farmer v. Calvert, 13. 
 
 v. Walter, 354. 
 Farmers' Bank v. Douglass, 375, 635, 
 
 690. 
 Farmers' & M. Nat. Hank v. King, -3. 
 Farmers' & M.Sav. Bank v. Brewer, 659. 
 Famed v. Harris, 153, 172. 
 Farnham v. Campbell, 62. 
 Farnsworth v. Bell, 244. 
 
 v. Strasler, 149. 
 
 7 . Wood, 238. 
 Farrar v. Bernheim, 716, 719, 724. 
 
 v. Haselden, 169. 
 Farrington v. Stone, 435. 
 Farrow v. 1 laves, 20, 569, 608. 
 Earwell v. C(jhen, 550, 608. 
 
 v. Furniss, 604. 
 
 7'. Xilsson, 594, 596. 
 Fassit v. Phillips, 55. 
 Faulkner z\ Hyman, 614. 
 Faxon v. Ball, 307. 
 Fay 7. (Irant, 574, 610. 
 Fearn 7'. Ward, 181. 
 Fecheimer v. Baum, 104. 
 
 7'. Hollander, 170. 
 
 7'. Robertson, 548. 
 Feigley "•. Feigley, n, 222, 244. 
 Fein v. l"<in, 244. 
 
 . Randall, 712. 
 Felch 7'. Bugbee, 517. 
 Felix v. Patrick, 2S3. 
 Fell V. Brown, 250. 
 Fellows 7'. Emperor, 386. 
 
 V. Fellows, 16, 251, 260, 290. 
 
 v. Lewis, 31.
 
 References'] TABLE OF CASES. [are to f ages. 
 
 Fellows v. Smith, 187, 188. 
 Felton v. Wadsworth, 409. 
 Fenelon v. Hogoboom, 529. 
 Fenner v. Dickey, 28, 711. 
 Fera v. Wickham, 562. 
 Ferbrache v. Martin, 474, 486. 
 Ferguson v. Bobo, 140, 270. 
 
 v. Dent, 136. 
 
 v. Hillman, 322, 324, 669. 
 
 v. Kumler, 92. 
 
 v. Spear, 523, 703. 
 Ferris v. Irons, 497. 
 
 v. McQueen, 405, 406. 
 Fessenden v. Woods, 235. 
 Fetter v. Cirode, 408. 
 Feurt v. Rowell, 618. 
 Fick v. Mulholland, 13. 
 Fidelity Ins.,T. & S. D. Co. v. Hunt- 
 ington, 260, 521. 
 Fidler v. John, 613. 
 Fiedler v. Darrin, 269, 505. 
 Field v. Andrada, 227. 
 
 v. Chapman, 102. 
 
 v. Hastings & B. Co., 2S1. 
 
 v. Holland, 304. 
 
 v. Holzman, 332. 
 
 v. Ridgely, 421. 
 
 v. Sands, 235, 709. 
 Fifield v. Gaston, 357. 
 Filebeck v. Bean, 624. 
 Filer v. N. Y. Central R. R. Co., 
 
 392- 
 Filley v. Register, 437. 
 Finch v. Houghton, 336. 
 Fincke v. Funke, 236. 
 Finding v. Hartman, 454. 
 Findlay 7'. McAllister, 101, 117, 121. 
 Fink v. Denny, 194. 
 
 v. Jetter, 308. 
 
 v. Patterson, 167. 
 Finn v. Krut, 91. 
 Finnin v. Malloy, 89. 
 First Mass. Turnp. Co. v. Field, 514. 
 First Nat. Bank ?•. Anderson, 634. 
 
 v. Bertschy, 341, 362. 
 
 v. Buck, 484. 
 
 v. Chalmers, 81. 
 
 v. Cooper, 229. 
 
 v. Cummins, 347, 350. 
 
 v. Dwelley, 95. 
 
 v. E. T. Barnum Wire & Iron 
 Works, 336, 33S. 
 
 -'. Gage, 332. 
 
 v. Hamilton, 357, 530. 
 
 v. Holmes, 592. 
 
 v. Hosmer, 128, 295. 
 
 v. Hughes, 598. 
 
 v. Irons, 10. 
 
 v. Jaffray, 423. 
 
 v. Kansas City Lime Co., 480. 
 
 v. Kavanagh, 523. 
 
 v. Knowles, 430. 
 
 v. Lowrey, 501. 
 
 v. Moffatt, 435. 
 
 First Xat. Bank :■. Schuk-r, 129, [48, 
 249, 253, 256, 261. 
 
 v. Sloman, 154. 
 
 v. Smith, 435. 
 
 7-. Wittich, 620. 
 
 v. Wood, 413. 
 Fish v. Clifford, 450. 
 Fish Bros. Wagon Co. v. La Belle 
 
 Wagon Works, 72. 
 Fishel v. Ireland, 417. 
 Fisher, Ex parte, 714. 
 
 v. Andrews, 144. 
 
 v. Bassett, 248. 
 
 v. Bishop, 730. 
 
 v. Boody, 329. 
 
 v. Henderson, 33, 634. 
 
 v, Herron, 435. 
 
 v. Lewis, 204. 
 
 v. Moog, 435, 47S. 
 
 v. Shelver, 415, 435, 527. 
 
 7\ Taylor, 6^0, 662. 
 
 v. Tulter, 286. 
 Fiske 7\ Foster, 517. 
 Fitch v. Burk, 466. 
 
 v. Smith, 298. 
 Fitzburgh v. Everingham, 331. 
 Fitzgerald v. Quann, 46. 
 Flack v. State of X. Y., 126. 
 Flagg v. Mann, 303, 674. 
 
 v. Wellington, 501, 
 Flamank, //.• re, 536. 
 Flanagan r. Wood, 464. 
 Flannery v. Van Tassel, 4S7, 4S9, 490. 
 Flash v. Conn, 26S, 269. 
 
 v. Wilkerson, 220, 349. 
 Fleischer v. Dignon, 434. 
 Fleming v. Buchanan, 76. 
 
 v. Grafton, 139, 142. 
 
 v. Slocum, 10. 
 
 v. Yost, 480. 
 Flemington Xat. Bank 7\ Jones, 358. 
 Fletcher r. Ashley, 544. 
 
 v. Bonnet, 451. 
 
 v. Fletcher, 726, 728. 
 
 r. Holmes, 140, 155, 229. 
 
 v. Martin, 312, 630. 
 
 v. Peck, 668. 
 
 v. Powers, 626. 
 Flewellen v. Crane, 274. 
 Fliess v. Buckley, 121. 
 Flint 7\ Clinton County, 615. 
 Florence S. M. Co. v. Zeiijler, 34, 366. 
 Flournoy v. Johnson, 660. 
 Flower t\ Cornish, 231. 
 Flynn 7\ Jackson, 534. 
 Focke v. Blum, 577. 
 Fogg v. Blair, 131, 237, 23S, 240, 268. 
 
 v. Lawry, 125. 
 Foley v. Bitter, 109, 133, 361. 
 
 v. Burnell, 64. 
 Follansbee v. Follansbee, 545. 
 Folsom v. Clemence, 418, 419, 
 Fonda v. Gross, 470. 
 Foote v. Cobb, 187.
 
 XXX 
 
 ,] TABLE OF (ASKS. \aretofage*. 
 
 Fort" 
 
 i . I [owe, 714. 
 
 erby, :m. 
 nell, 433. 
 
 :. Walu-r. 173, 371, 557, 55S. 
 I . Brown, 
 
 Ford v. Chambers, 467. 
 52. 
 
 : . 1 Ian ington, 729. 
 
 : . 1 [ennessy, j 
 
 1 . Johnston, 51, 183, 194, 416. 
 
 v. Williams .631. 
 
 Forde :. Exempt Fire Co.. 224. 
 Fordyce t . Hicks, 709. 
 :ner v. Stuart, 449. 
 Forrest* r 1 . M< 
 
 F<.rsyth v. Matthews, 454. 435. 
 Former v. Whelan, 7. 
 Fort Payne Bank v. Alabama Sani- 
 tarium, 241, ( 
 
 Stanwix Hank v. Leggett, 229, 
 261, 262, 553. 
 
 k ?■. Delaneld, 24^. 
 Foster v. Brown, 7. 
 
 v. 1 [83, 187, 222, 346. 
 
 v. Hackley, 22 
 
 v. 1 [all, 357. 490. 
 
 r . Know fes, 413. 
 
 v. McGregor, 31, SS. 
 
 v. Mansfield, C. & K. M. R. R. 
 Co., 507, 508. 
 
 - Saco Mfg. Co., 581. 
 
 v. Smith. 640. 
 
 v. \ < iwnshend, 236. 
 
 v. Wallace, 454. 
 
 v. Woodfin, 23, 407. 
 Fouche v. Brower, 1. 
 Fourth Xat. Bank r-. Stout, 740. 
 Fowler v. Frisbie, 1S3. 
 
 v. Icnkim 
 
 i . McCartney, III. 
 
 v. Tr< /. 133. 
 
 Fowler's Appeal, 113, 155, 226, 333. 
 
 . Curtis, 336, 563. 
 
 7'. 1M wards, 1 - 
 
 7 . I lills, 38, 51, 244, 24;. 
 
 -■■ Moj 1 ■ 1 28, 142, 155, 177, 
 1;-. 1 91, 253. 254, 265, 534. 
 7. Peck, • 
 7'. Wallace, 151. 
 Frakes v. Brown, 244. 
 Fram i- 7. I 140, 162, 206,207. 
 
 Page . 
 v. Rankin 
 I lirre, 717. 
 
 7. Ryan. I 
 Francklyn -. . Fern, 229. 
 Franey v. Smith 
 Frank 7 . Bobbitt, 124, 551. 
 sler, 17". 
 
 v. King, 526, 527. 
 
 7. Mutual K. I 
 
 v. Robinson, 610. 
 
 Frank's Appeal, 362. 
 Frankhouser v. Ellett, 626. 
 Franzen v. Zimmer, (115. 
 Fraser v. Charleston, 265. 
 
 v. Thorn] 
 Frazer v. Thatcher. 365, 704. 
 Frazier v. Barnum, 337, 661. 
 
 7 . Fredericks, 446. 
 Frederick v. Shorey, 533. 
 Fredericks 7. Davis, 733. 
 Freedman's Saw & T. Co. 7 . Earle, 70S. 
 Freeholders of Hunterdon v. Henry, 
 
 661, 662. 
 Freeland 7'. Freeland, 45, 185, 231, 232, 
 
 722. 
 Freelove v. Cole, 72^. 
 Freeman 7'. Bowen, 647. 
 
 7'. Deming, 229. 
 
 7'. Klmendorf. 245. 
 
 7'. Freeman, 519. 
 . I [artman, 544. 
 
 7'. Pope, 1-7. 
 
 v. Sedwick. 726. 
 
 v. Smith, 93. 
 Freider v. Lcinkauff, 140. 
 Frelinghuysen 7 r . Nugent, 83. 
 French z\ Andrews, 616. 
 
 7'. Rreidelman, 319. 
 
 7'. Burns. 423. 
 
 v. Kdwards, 571. 
 
 t'. French, 17, 59, t\. 
 
 v. Holmes, 23, 55, 79, 188, 190, 
 437. 538. 
 
 7\ Motley, 387, 506, 525, 703. 
 
 7'. Shotwell, 247. 736. 
 Frenche v. Kitchen, 50S. 
 Freund, v. Yaegerman, 594. 
 Friedburgher v. Jaberg, 564, 610. 
 Friedenwald ?■. Mullan, 30S, 666. 
 Friedman 7'. Fennell, 57. 
 Frisbey v. Thayer, 142. 
 Frisk 7 . Reigelman, 430, 432. 
 Frith v. Cartland, S3. 
 Frost v. Mott, 15s, 159, 262. 
 
 7 . Warren, 407. 
 Frothingham v. Hodenpyl, 140, 147. 
 Fulkerson v. Sappington, 480. 
 Fullagar v. Clark, 9S. 
 Fuller v. Bean, i -4. 
 
 7. Brewster, 7, n. 190, 415, 426, 
 468, 473. 
 
 7. Brown, 21, 1S3, 1S7. 
 
 7'. Griffith, 424. 
 
 7. Kent, 56. 
 
 v. Pinson, 671. 
 
 7. Roberts, 354. 
 Fullerton v. Viall, 322, 323. 
 Fullington Northwestern Imp., etc., 
 
 Assoc, 197. 
 Fulp v. Beaver, 7, 523. 
 Fulton 7. Fulton, 040. 
 
 7'. Woodman, 301, 698. 
 Funkhouser 7. Lay. 69S. 
 Furman v. Tenny, 92.
 
 Reference* \ TABLE OF CASES. [are towage*. 
 
 XXXI 
 
 Fury v. Strohecker, 62. 
 Fusze z'. Stern, 130. 
 
 Gable v. Columbus Cigar Co., 1, 203, 
 
 374, 392, 527, 529- 
 Gadsden v. Woodward, 269. 
 Gaftney's Assignee v. Signaigo, 424. 
 Gage v. Dauchy, 95, 532, 533. 
 Gainer v. Russ, 304. 
 Gaines v. Chew, 288. 
 
 v. Relf, 137. 
 Galbreath v. Cook, 395. 
 Gale v. Williamson, 187. 
 Galentine v. Wood, 225. 
 Gallagher, /;/ re, 69. 
 
 v. Rosenfield, 619, 623. 
 Gallagher's Appeal, 390. 
 Gallatian v. Cunningham, 308. 
 Galle v. Tode, 319, 35S, 603. 
 Gallman v. Perrie, 100, 108, 246. 
 Galpin v. Galpin, 722. 
 Gamber v. Gamber, 530. 
 Games, Ex parte', 619. 
 Gannard v. Eslava, 182, 187. 
 Gans v. Thieme, 348. 
 Garahy v. Bayley, 674. 
 Garbutt v. Smith, 62. 
 Garden v. Bodwing, 619. 
 Gardenier v. Tubbs, 470. 
 Gardiner v. Sherrod, 118. 
 Gardiner Bank v. Wheaton, 17. 
 Gardinier v. Otis, 322. 
 Gardner ?'. Baker, 181. 
 
 v. Broussard, 431. 
 
 v. Cole, 37, 66S. 
 
 v. Commercial Nat. Bank, 567. 
 
 v. Gardner, 144. 
 
 v. Kleinke, 187, 197. 
 
 v. Lansing, 177. 
 
 v. McEwen, 410, 621. 
 
 v. Ogden, 738, 739. 
 
 v. Oliver Lee's Bank, 517. 
 Gardner's Admr. v. Schooley, 392. 
 Gardom v. Woodward, 370, 494. 
 Garesche v. MacDonald, 67S. 
 Garfield v. Hatmaker, 107, 108, 164, 242. 
 Garland v. Garland, 644, 655, 658, 660. 
 Garman v. Cooper, 453, 461. 
 Garner v. Graves, 224, 490. 
 
 v. Second Nat. Bank, 147, 531, 
 
 535- 536, 593- 
 Garnsey v. Rogers, 81. 
 Garr v. Klein, 523. 
 Garrahy v. Green, 491. 
 Garretson v. Hackenberg, 446, 466. 
 
 v. Kane, 68, 735. 
 Garrett v. Warner, 539. 
 Garrison v. Monaghan, 55, 80. 
 Garrity v. Haynes, 533. 
 Garrow v. Davis, 304. 
 Garvin v. Williams, 730. 
 Gary v. Jacobson, 726. 
 Gasherie v. Apple, 605. 
 Gates v. Andrews, 563. 
 
 Gates v. Boomer, 215, 218. 
 
 ; . Mow rv, 733. 
 
 v. Young, 1 15, 125. 
 Gay v. Bidwell, 22, 625. 
 
 v. Hamilton, 423. 
 
 v. Parpart, 1 14. 
 Gayler v. Wilder, 73. 
 Gaylord v. ImhorT, 93. 
 Gaylords r. Kelshaw, 252, 254. 
 Gebhard v. Sattler, 720. 
 Gebhart v. Merfeld, 51, 221, 245. 
 Geery v. Geery, 57, 142, 156, 177. 
 Geisse v. Beall, 555. 
 Geist v. Geist, 396. 
 Genesee County Bank v. Bank of 
 
 Batavia, 219. 
 Genesee River Nat. Bank v. Mead, 
 
 208, 276, 377. 
 Genet v. Beekman, 639. 
 Gentry v. Kelley, 370, 494. 
 George v. Grant, 563. 
 
 v. Milbanke, 76. 
 
 v. Norris, 452. 
 
 v. Williamson, 129, 130, 223, 
 708, 717. 
 Gere v. Murray, 568. 
 German Bank v. Leyser, 224, 226. 
 German Ins. Bank v. Nunes, 433, 572. 
 Gerrish v. Mace, 246. 
 Gettelmann v. Giti, 529. 
 Getzler v. Saroni, 31. 
 Ghormley v. Smith, 662, 663. 
 Gibbons v. Pemberton, 176. 
 Gibbs v. Neely, 497. 
 
 v. Thayer, 231. 
 
 v. Thompson, 407, 430. 
 Gibson v. Crehore, 224. 
 
 v. Herriott, 512. 
 
 v. Hill, 452. 
 
 v. Jeyes, 729. 
 
 v. Love, 453. 
 
 v. Seymour, 424. 
 
 v. Shufeldt, 740. 
 
 v. Warden, 230. 
 Giddings v. Sears, 480, 703, 705. 
 Gifford v. Corrigan, 81. 
 
 v. Helms, 284, 513. 
 Gilbert v. Decker, 452. 
 
 v. Glenny, 530. 
 
 v. Lewis, 274. 
 
 v. Stockman, 166. 
 Gilhooly v. American Surety Co., 307. 
 Gill v. Carter, 29. 
 
 v. Griffith, 422. 
 
 v. Weston, 333. 
 Gilleland r'. Rhoads, 93. 
 Gillespie v. Allen. 374. 
 
 v. Cooper, 287, 513. 
 Gillet z\ Moody. 237. 
 
 v. Phelps, 427. 
 Gillett v. Bate, 95, 325, 
 
 ?■. Gaffney, 469. 
 Gillette v. Bate, 73, 74. 84. 
 Gilliland v. Jones, 361.
 
 XXXI 1 
 
 FABLE OF CASES. [are towages. 
 
 Gilman :. Hunnewell, 71. 
 i ,-iockwood, 517. 
 
 . Hutchinson. 135, 291, 543. 
 Ginn : . Brown, 144. 
 Gintber v, Richmond, 549. 59°> 6o6 - 
 lit : A. P. Hbtatihg Co., 534. 
 Vounglove, 539. 
 Brandon, 525. 
 - . Zutavern, - 
 >n v. Fayerweather, 640. 
 7. Wilson. 276, 630. 
 Glen v. Hope Mut. Life Ins. Co., 81. 
 Glendon Iron Co. v. L'hler, 567. 
 Glenn v. Farmers' Bank, 170. 
 
 I rlenn, 410. 
 Glenny v. Langdon, 229, 230, 235, 591. 
 Glidden ; . Hunt, 698. 
 
 704. 
 Goddard v. Weil, 459, 465. 
 Godden :. Kimmell, 512. 516. 
 ('■■Hiding v. Brackett, 10S. 
 Godfrey v. Germain, 416. 
 v. Miller, 431, 690. 
 Goe's Estate, 663. 
 Goff v. Kelly, 231. 
 
 v. Rogers, 397, 406, 407. 
 Gogebic Inv. Co. v. Iron Chief Min. 
 
 Co., 241. 
 Goldsmith v. Goldsmith, 276. 
 
 v. Russell, 60, 127. 
 Goll & F. Co. v. Miller. 1S0. 
 Gollober v. Martin. 431, 6S9, 691. 
 Gollobitsch v. Rainbow, 498. 
 Gome/ v. Hagaman, 703. 
 Gooch's Case, 46. 
 Goodbar v. Cary, 388, 3S9. 
 Goodbar Shoe Co. v. Montgomery, 613. 
 Goode v. Garrity. 140. 
 : . 1 lawkins, 9. 
 Goodcll v. Fairbrother, 45a. 
 Goodheart tjohnson, 619. 
 Goodman v. Harvey, 6S7. 
 v. Simonds, 9. 
 7. Wineland, 437. 
 Goodnow v. Smith. 47'j. 
 Goodrich z\ Downs, 568, 573. 
 . in :■. Hubbard, 358. 
 V. Kelly, 463. 
 V. Snyder, 312. 
 v. Wertheimer, 301, 561. 
 I iwii v. Goodwyn, 717. 
 Goodyear Vulcanite Co. t\ Frisselle, 
 1 i'.. 1--4 
 
 ns 7. Gilmore, 44'). 625, 635. 
 . in, Matter of, 573. 
 7. Anthony, 73. 
 7'. Cannon, 347. 
 Hobart, 137. 
 Reynolds, [81, 294, 296. 
 Ritenour. ; 
 7. Worthley, 537. 
 
 Gorham v. Innu 
 Gormerly v. Chapman, 109, 133. 
 • . . Potter, in. 
 
 Gcrrell v. Dickson, 73, 136. 
 
 Goshorn v. Snodgrass, 15, 400, 402, 
 
 405, 410, 432, 666, 698, 700. 
 Goss 7'. Neale, 704. 
 Gottlieb 7'. Thatcher, 435, 436. 
 Goudy v. Gebhart, 722. 
 Gould v. Emerson, 56, 541. 
 
 v. Sieinburg, 246. 
 
 7'. Ward, 418. 
 Governor r. Campbell, 357, 558. 
 Cowan 7. Gowan, 725, 737. 
 Grabill v. Moyer, 524, 525, 535. 
 Graff v. Bonnett, 86. 
 Graff's Estate, 34S. 
 Graffam v. Burgess, 7. 
 Gragg 7'. Martin, 375. 
 Graham v. Chapman, 18. 
 
 v. Culver, 309. 
 
 v. Furber, 432. 
 
 v. Meyer, 711. 
 
 v. Railroad Co., 205, 240, 247, 
 
 359- 377, 717. 736- 
 Graham Button Co. v. Spielmann, 237. 
 Grand Island Banking Co. v. Costello, 
 
 425- 
 Granger v. George, 514. 
 Grant, Ex parte, 69. 
 
 7 . Carpenter, 640. 
 
 v. Gre» n, 393. 
 
 v. Lewis, 460. 
 
 v. Libby, 502. 
 
 v. Lloyd, 310. 
 
 ?•. Morse, 733. 
 
 v. National Bank, 9, 694. 
 
 v. Sutton, 524, 527, 529. 
 
 v. Ward, 9, 188, 528. 
 Graver v. Faurot, 741. 
 Graves r'. Blondell, 25, 34. 
 
 v. Corbin, 252, 260, 521. 
 
 v. Davenport, 392, 526. 
 
 v. Dolphin, 64, 646, 654. 
 
 v. Graves, 370, 494. 
 Gray 7'. Blanchard, 640. 
 
 v. Chase, 128. 
 
 v. Corbit, 660. 
 
 v. Galpin, 434. 
 
 7. McCallister, 364. 
 
 v. Obear, 640. 
 
 V. Schenck, 250, 258. 
 Great Falls Mfg. Co. v. Worster, 738. 
 Great Western Tel. Co. v. Burnham, 
 
 123. 
 Greaves v. Gouge, 144, 221, 225. 
 Greeley '•. Dixon, 577. 
 (ireen v. Adams, 222. 
 
 7\ CreiKhton, 137, 156. 
 
 v. Early, 692. 
 
 7 . Givan, ibS. 
 
 v. 1 licks, 251. 
 
 v. Kimble, 118. 
 
 v. Milbank, 249. 
 
 v. Nixon, 28. 
 
 r 1 . Richardson, 81. 
 
 v. Sarmiento, 517.
 
 References'] TABLE OF CASES. [are to pages. 
 
 XXX 1 1 1 
 
 Green v. Spicer, 646, 657. 
 
 v. Tanner, 302. 
 
 v. Tantum, 67. 
 
 z. Trieber, 20. 
 
 v. Van Buskirk, 123. 
 
 v. Walkill Nat. Bank, 263. 
 
 v, Wallis Iron Works, 233. 
 Greene v. Breck, 220. 
 
 v. Greene, 87. 
 
 v. Keene, 67, 73. 
 
 v. Sprague Mfg. Co., 1S4, 214. 
 Greenebaum v. Wheeler, 454, 623, 
 Greenfield's Estate, 188. 
 Greenleaf v. Mumford, no, 159, 175, 
 
 241. 
 Greenleve v. Blum, 363. 
 Greenway v. Thomas, 140, 16S, 169. 
 Greenwood v. Brodhead, 51, 149. 
 
 v. Marvin, 320. 
 Greer v. O'Brien, 418, 433. 
 Gregg v. Bigham, 476. 
 
 v. Cleveland, 583, 610. 
 Gregory v. Gray, 4 I0 > 435- 
 Grider v. Graham, 720. 
 Gridley v. Watson, 190. 
 Griffin v. Barney, 575, 606, 609. 
 
 v. Doe d. Stoddard, 214. 
 
 v. Macaulay, 726. 
 
 v. Marquardt, 370, 557, 559, 568, 
 616, 668. 
 
 v. New Jersey Oil Co., 391. 
 
 v. Nitcher, in, 140, 141, 142. 
 
 v. Peters, 390. 
 
 v. Stanhope, 419. 
 Griffith v. Griffith, 297, 672, 673. 
 
 v. Parks, 484. 
 
 v. Townley, 349. 
 Grimes v. Hill, 489. 
 Grimes D. G. Co. v. Shaffer, 368, 481. 
 Grimsby v. Ball, 229. 
 Grimstone v. Carter, 674. 
 Griswold v. Sheldon, 443, 459, 622. 
 Grocers' Bank v. Murphy, 69. 
 Grogan v. Cooke, 58, 67. 
 Gross, Estate of, 79, So. 
 
 v. Daly, 143, 15S, 175, 241. 
 
 v. Eddinger, 526. 
 Grotenkemper v. Harris, 437. 
 Grover v. Grover, 301. 
 
 v. Wakeman, 7, 10, 18, 26, 363, 
 548, 573, 577, 590, 607. 
 Grover & B. S. M. Co. v. Radcliff, 277. 
 Groves v. Rice, 233, 547. 
 Grubbs v. Greer, 433. 
 Grunsky v. Parlin, 358. 
 Guckenheimer v. Angevine, 340, 349. 
 Guerin v. Hunt, 592, 593, 598. 
 Guernsey v. Powers, 335. 
 
 v. Wood, 517. 
 Guest v. Barton, 718. 
 Guice v. Sanders, 451. 
 Guidry v. Grivot, 35, 242, 723. 
 Guignard v. Aldrich, 470. 
 Guillander v. Howell, 123. 
 C 
 
 Guion v. Liverpool, I.. & (\. Ins. Co., 
 
 476. 
 Gullickson : . Madsen, 1 1 1 
 Gumberg v. Treusch, 372, 401. 
 Guthrie r. Gardner, to8, 164. 
 Gutzweiler t. Lackmann, 12. 
 Gwin ,-'. Selby, 102. 
 Gwyer v. Figgins, 188. 
 
 Haack z>. Weicken, 728. 
 llaak's Appeal, 246, 366, 717. 
 Haas ?'. Chicago Bldg. Soc, 336. 
 
 7'. Sternbach, 354, 421. 
 Habenicht -'. Lissak, 71, 337. 
 Hackett v. Jvlanlove. 617. 
 Hackley v. Headley, 354. 
 Hadden v. Spader, 16, 40, 51, 58, 67, 
 
 74, 107, 130- 
 Hadley v. Morrison, 61. 
 Hadock v. Hill, 674, 688. 
 Haenschen v. Luchtemeyer, 492. 
 Hafner v. Irwin, 5, 419, 422, 556. 
 Hagan v. Walker, 156, 166. 
 Hagar v. Shindler, 247, 317. 
 
 v. Thomson, 9, 12. 
 Hagerman v. Buchanan, 193. 
 Haggarty v. Pittman, 103. 
 Haggerty v. Nixon, 107, 140. 
 Hahn v. Penney, 486. 
 Haines v. Hollister, 251, 259, 261. 
 Halbert v. Grant, 157. 
 Hale v. Baldwin, 517. 
 
 v. Metropolitan Omnibus Co., 
 
 44«- 
 
 v. Nashua & L. R. R. Co., 289. 
 
 v. Sweet, 457, 632. 
 
 v. Tavlor, 370. 
 
 v. West Va. Oil & Land Co., 47S. 
 
 v. Wetmore, 223. 
 Hall v. Arnold, 26, 357, 365. 
 
 7\ Callahan, 224. 
 
 v. Germain, 357. 
 
 v. Hall, 29, 77. 
 
 v. Law, 512. 
 
 v. Marston, 81. 
 
 v. Moriarty, 213. 
 
 v. Ritenour, 486. 
 
 v. Russell, 516. 
 
 v. Sands, 55, 183. 
 
 v. Stryker, 160. 
 
 v. Tufts, 643. 
 
 v. Williams, 656. 
 Hallet's Estate, /// re, S3. 
 Hallett ?'. Thompson, 65, 85, 654, 661. 
 Hallgarlen v. Oldham, 614. 
 Halloch 7'. Alvord, 494- 
 Hal'oran v. Halloran, 737. 
 Hallowell v. Bayliss, 231. 
 Halsey v. Cheney, 511. 
 Halstead 7'. Grinnan, 507. 
 
 v. Westervelt, 66i, 662. 
 Halsted t. Halsted, 121. 
 Ham 7'. Gilmore, 432. 
 
 v. Van Orden, 396.
 
 XXXIV 
 
 ■• »] TABLE OF CASKS. [are to pages. 
 
 Hamburger v. Gram. 54. 
 Hamett v. Dundass, 30, 181, [82. 
 Hamilton v. Cone, 107, 1-7. 104,242, 
 
 :. Russel, 37. 4.52, 453. 
 
 -. Scull, 722. 
 Hamilton Nat. Hank v. Halsted, 6, 321, 
 
 . 344. 34?. 718. 
 Hamilton- Brown Shoe Co. v. Mercer, 
 
 550. 
 Hamlen v. McGillicuddy, 111,258, 271.. 
 Hamlin :. Wright, 217. 21S, 234, 236, 
 
 Hammond v. Hopkins, 283,507, 511, 
 516. 
 
 v. Hudson River I. & M. Co., 
 220. 
 Hanby v. Logan, 80. 
 Han ars, 1 16, 117. 
 
 Hand v. Kennedy. 81. 
 Handley v. Stutz, 237. 
 Hanes v. Tiffany, 232. 
 Hanfonl v. Artcher, 393, 451, 458, 4' ,( >- 
 
 v. ( >brecht, 470. 
 
 V. Paine, 614. 
 
 . Prouty, 389. 
 Hangen 7. Hachmeister, 347, 619, 621. 
 Hann v. Van Voorhis 
 Hannan v. Oxley, 529. 
 Hanover N'at. Bank v. Blake, 711, 713. 
 
 v. Klein, 304. 
 Hanover R. R. Co. z\ Coyle, 487. 
 Hanson ?■. Bean, 406, 409. 
 
 v. Buckner, 1-7. 
 
 v. Metcalf, 563. 
 Hap^odd v. Lisher, 667. 
 Hard v. Ashley. 371. 
 Hardenburgh v. Blair, 661. 
 Hardesty v. Kinworthy, 4S2. 
 Hardey v. Green, 190. 
 Harding v. Bunnell, 306, 307. 
 
 v. Elliott, 100, 365. 
 
 7 . 1 iandy, 274. 
 Hardmann v. Bowen, 558, 565, 592. 
 Hardt v. Heidweyer, 284, 2^5,425, 596. 
 Hardware Co. ?■. Implement Co.. 597. 
 Hardy v. Mitchell, 519. 
 
 v. Potter, 449. 
 
 7. Simpson, 22, 24. 
 I tlai ksheai 
 Harkness v. Russell, 450. 
 
 mi 7'. Maglaughlin, 306. 
 I larlin v. Stevenson. . 
 Hannan v. Hoskins, [9, 20, 22, 351. 
 
 Harmon ■ I larmon, 717. 
 Harper v. I larper, 733. 
 
 I'' ' ! ', 
 
 I larrell v. < rodwin, 449. 
 V. Kim. - I",. 
 
 7. Mit. hell, 394. 404. 432. 43?. 
 
 1 [arriman v. Gray, 545. 
 
 Harris v. Alcock, 407. 
 
 Harris v. Burns, 428. 
 
 z\ Harris. 183, 244, 728. 
 
 z\ Russell. 359, 407, 491, 492. 
 
 v. Sangston, 338. 
 
 7 . Sumner, 609, 702. 
 Harrison v. Gibbons, 150. 
 
 7'. Hallum, 2q 
 
 7. Mayor, etc., of Southampton, 
 29. 
 
 r. Trustees of Phillips Academy, 
 424. 
 Hart,. Matter of, 227. 
 
 v. Chalker, 391. 
 
 v. Flinn, 302. 
 
 7 . Sandy, 42S, 429, 431, 432. 
 
 v. Sansom, 730. 
 
 v. Ten Eyck, 219, 308. 
 
 7'. Wing, 454. 
 Harter v. Christoph, 13. 
 Hartlepp v. Whiteley, 271. 
 Hartley :■. White. 387. 
 Hartman v. Oilier. 497. 
 Harton v. Lyons, 487, 493. 
 Hartshorn v. Eames, 26, III, 301, 363, 
 410, 416, 426, 429. 
 
 7'. Williams. 424. 
 Harvey v. Bresbin, 79. 
 
 v. McDonnell, 229, 262, 547. 
 
 v. Varney, 71''. 7~, 723. 733- 
 Harvey's Estate. /// re, 77. 
 Harwick z-. Weddington, 399, 494. 
 Harwood v. Railroad Co., 511. 
 Hasie v, Connor. 9, 12, 411, 6SS, 703. 
 Haskett v. Auhl. < 3q. 
 Hassam v. Barrett, 423, 425. 737. 
 Haston v. Castner, 155, 166, 1S6, 187, 
 
 206, 226. 
 Haswell v. Haswell, 047. 
 Hatch 7'. Bayley. -. 
 
 v. Dana, 68, 131. 237, 240, 241. 
 
 7 . Daniels, 33S. 
 
 v. Dorr, 12<). 
 Hathawav 7. Brown, 37". 37L 
 
 v. Moran, 570, 572. 
 
 v. Noble, 507. 
 Hatstat 7'. Blakeslee, 452, 453. 
 Hauer's Estate, 530. 
 Hauselt v. Harrison, 618. 
 
 7. Vilmar, 3<>4, 600. 
 1 l.tven ?'. Richardson, 1 1 - 
 . 660, 661. 
 1 [awes v. Loader, 223. 
 
 7 . ( >akland, 144, 221. 
 Hawkins v. Alston, 4"-. 
 
 7 r . Davis, • 
 
 v. Galhercole, 336. 
 
 v. CI tin. 172. 
 
 7. Hastings Lank, 630, 631. 
 
 7 . Kan-. is City I L P. B. Co., 465. 
 I [awley v. Cramer, 0S9. 
 
 7'. Fairbanks, 740. 
 
 z'. 1 lamp ton, 93. 
 
 v. 1 lunt, ?i7. 
 
 v. James, 560.
 
 References'] TABLE OF CASKS. \are to pages. 
 
 XXXV 
 
 Hawley v. Northampton, 640. 
 
 Haxtun v. Bishop, 615. 
 
 Haydock v. Coope, 547, 577, 578, 715. 
 
 Haydock Carriage Co. v. Pier, 560. 
 
 Hayes v. Westcott, 348. 
 
 Haynes v. Brooks. 563, 579 
 
 v. Hoffman, 6 
 
 :•. Hunsicker, 466. 
 
 v. Rogers, 36S, 47-. 
 Hays v. Montgomery, 3S1. 
 Heacock v. Durand, roi, 588. 
 Heard v. Murray, 337. 
 
 - . Sturgis, 552. 
 Heartt v. Corning, 303. 
 Heath v. Bishop, 65, 657, 660. 
 
 v. Heath, 106. 
 
 v. Page, 25. 183, 319, 49S. 
 Heaton z\ Prather, 674. 
 Hebbard v. Iiaughian, 396. 
 Heck v. Fisher, 60. 
 Heckman v. Messinger, 89, 553, 574. 
 Hedges v. Polhemus, 633, 635. 
 Hedman v. Anderson, 626. 
 Hedrickf. Strauss, 375, 668, 671. 
 Heeren v. Kitson, 392. 
 Hefner v. Metcalf, 26. 
 Hegeler v. First Nat. Bank, 421. 
 Hegewisch v. Silver, 337. 
 Heiatt v. Barnes, 149, 150, 188. 
 Heilman v. Jones, 247. 
 Heineman v. Hart, 234. 
 Heintze v. Bentley, 406. 
 Helms v. Green, 402, 432, 528. 
 Hempstead v. Johnston. 7. 
 Henckley v. Hendrickson, 7. 
 Henderson v. Brooks. 150. 
 
 v. Downing, 634. 
 
 v. Henderson, 1S0, 211, 317, 432. 
 
 v. Hoke, 209. 
 
 v. Hunton, 343. 
 Hendricks v. Mount, 214. 
 
 v. Robinson, 16, 148, 2S1. 
 Hendrickson v. People, 400. 
 Hendrix v. American F. L. M. Co., 
 
 336- 
 Henkel, In re, 91. 
 Henley v. Hotaling, 423. 
 Hennequin v. Clews, 339, 518. 
 Henning v. Harrison, 640. 
 Henry v. Harrell, 406. 
 
 v. Henry, 49S. 
 
 v. Hinman, 25, 34, 100, 109, no. 
 
 v. Sargeant, 269. 
 
 r. Vermilion R. R. Co., 68. 
 Hentz v. Phillips, 265. 
 Hepworth v. Union Ferry Co., 1S3. 
 Herkelrath v. Stookey. 405. 
 Herman v. McKinney, 667. 
 Herrick v. Borst, 278, 481, 482. 
 Herring v. N. Y., L. E. & W. R. R. Co., 
 141. 
 
 v. Richards, 12, 190, 191, 194, 212, 
 366. 
 
 v. Wickham, 7, 9, 374, 383, 530. 
 
 Herrlich r. Brennan, 
 
 I [ershy v. Latham, 
 Hess v. H 262. 
 
 . Voss, 664. 
 
 . Stevenson, 73, 74. 
 Hesser r . Wilson, 454. 
 1 [esthal v. Myles, 454. 
 Hevenor, Matter of, 550, 551. 
 Hewitt v. Commercial Banking Co., 
 368. 
 
 v. Williams, 523. 
 Hews v. Kenney, 534. 
 Heydock v. Stanhope, 135. 
 lleve v. Bolles, t6o, 175. 
 Heyneman v. Dannenberg, 166, 332. 
 Heywood v. City of Buffalo, 245. 
 Hibernia Ins. Co. v. St. Louis, etc., Tr. 
 
 Co., 241. 
 Hibernia Nat. Bank v. Lacombe, 614. 
 Hickey v. Ryan, 482. 
 Hickman v. Trout, 399, 402, 403. 
 Hickox v. Elliott, 24, 253, 255. 
 Hicks 7'. Campbell, 290. 
 
 v. Sharp, 491. 
 Hiern v. Mill, 672. 
 Higby v. Ayres, 215, 218. 
 Higgins v. 'Crouse, 273, 2S7, 351^507, 
 6S4. 
 
 v. Gillesheiner, 236. 
 
 v. Spahr, 429. 
 High v. Wilson, 520. 
 Hildebrand v. Bowman, 89, 574. 
 Hildeburn v. Brown. 419. 
 Hildreth v. Fitts, 463. 
 
 v. Sands, 246, 419, 46?. 
 Hilgenberg v. Northup, 8. 
 Hill, Ex parte, 647. 
 
 Matter of, 147. 
 
 v. Agnew . 
 
 v. Ahern, 670. 
 
 v. Bowman, 404, 704. 
 
 v. Draper, 562. 
 
 v. Reed. 615. 
 
 v, Ryan Grocery Co., 303. 
 
 v. Wood berry, 564, 566. 
 Hilliard v. Cagle, 206, 366, 419, 421. 
 
 V. Phillips, 492. 
 Hills v. Carlton, 516. 
 
 v. Eliot, 4S0. 
 
 . . Sherwood, 156, 224, 476. 
 Hilton v. Guyot, 154. 
 
 v. Morse, 193, 366. 
 Hinchliffe v. Shea, 54?. 
 Hinchman v. Parlin & <). Co., 526. 
 Hinckley v. Kreitz, 222. 
 Hinde v. Vattier, 
 
 Hinde's Lessee v. Longworth, 1S9, 190, 
 194, 205, 208, 380, 395, 437, 534. 54o. 
 Hinds v. Hinds, 183. 
 
 v. Keith, 370, 478, 689. 
 Hine <-. Bowe, ?4"- 
 Ilines v. Hawkins, 489. 
 Hinkle v. Wilson, 526, 539.
 
 . ! TABLE OF CASES. [are to pages. 
 
 Hinkle's Appeal, 663. 
 Hinton .- . Greenleaf, 497. 
 Hrrschfeld :. Williamson, 490. 
 
 , Hartford L. 1. Co., 57. 
 Hisle v. Rudasill, 381, 
 Hitch< mus 581. 
 
 1 . Kielj 376. 
 
 Hitt v. Ormsbei 
 Hixon r . George, 91, 92. 
 
 - iyre, 4' >8. 
 Hi. ban v. Hobart, 243. 
 
 5 ; . D.i\ is, 35, 365, 36S. 
 
 , Smith, ''4i . ' 
 11. >l.i. ken Hank v. Beckman, 303, 306. 
 1 [01 key v. Mawbey, 77. 
 Coleman, 705. 
 New England Screw Co., 27.1. 
 
 ;. Silver Hill Min. Co., 145. I?S. 
 
 :. Spicer, 4.13. 
 
 v, Winston, 92. 
 Hodgman v. Western R. R. Co., 553, 
 Hodgson v. Butts, 3S0. 
 
 v. Newman, 408. 
 Hoey v. Pierron, 539. 
 Holler v. Gladden, 432. 
 Hoffman V. Henderson, 502. 
 
 -.Junk, 51, 1S3, 244, 366. 
 
 7. Mac kail, 26. 
 
 v. Noble, 45. 
 
 v. N'olte, 52S, 529. 
 
 v. Pitt, 446. 
 
 : . Susemihl, 7 
 Hoffman's Appeal, 133. 
 1 (ogan v. Burnett, 1 ,2. 
 Hoke v. Henderson, 699. 
 Holbird v. Anderson, 26, 363, 365,408, 
 
 7"4- 
 Holbrook v. Holbrook, 490. 
 
 7. New Jersey Zinc Co., 29S, 299. 
 Holcombe v. Ehrmann traut, 4S1. 
 Holden v. Burnham, iSS, 277, 376. 
 I loldship V. Batters. .11, 65, '.50. 657. 662. 
 Hollacher 7. O'Brien, 450, 4.59, 460. 
 Holladay Case, The, I2>, 177, 089. 
 Holland 7 . Brown, 446. 
 
 v. Cruft, 224. 
 Hollingsworth 7'. Crawford, 330. 
 Hollins v. Brierfield Coal & Iron Co., 
 
 131. 136, 140. 359- 
 Hollister 1 . Abbott, 518. 
 
 V. Barkley, 338. 
 
 1 . Loud, 301, 353. 
 I lolli way V. I lolliway, 72'.. 
 I lolmberg v. Di an, -'74, 
 1 lolmer v. \'iner, 7 1 _* . 
 Hoi- ' iii II. 77. 
 
 1 ■ rdner, 666, '.70. 
 Gilman, - \. 
 
 v. Hubbard, 608. 
 
 7'. Marshall. <*»). 
 
 Sherwood, 253. 
 1 reamer, 28, 52, 353, 391, 408. 
 beck ■ . V.tnmetrc, 451. 
 
 Home Bank v. Brewster & Co., 615. 
 Hone 7\ Henriquez, 555, 708. 
 Hooberry z\ Harding, 
 
 . Jones, 524. 
 1 looley v. Gieve, 63. S3. 
 Hooper v. Baillie, 564. 
 
 v. Winston, 336. 
 Hoopes v. Knell, 433. 
 Hooser v. Hunt, 6S9, 692. 
 Hoot 7. Sorrell, 415. 
 Hope Mut. Life Ins. Co. v. Taylor, 239. 
 Hopkins v. Bishop, 461, 462. 
 
 v. Joyce, 534. 
 
 v. Langton, 357, 693. 
 Hopkirk 7 . Randolph, 55, 79, 96. 
 Horbach v. Hill, i3o, 193, 198, 203, 366. 
 Hord's Admr. v. Colbert, 7, 9. 
 Horn 7 . Horn, 40, 107. 
 
 v. Keteltas, 423. 
 
 v. Ross, 194. 
 Home r-. Chatham, 590. 
 Horneffer v. Duress, 529. 
 Horner 7'. Zimmerman, 101. 
 Horsey v. Heath, 223. 
 Horsford t. (judger, 273. 
 Horstman v. Kaufman, 309. 
 Horton v. Dewey, ^24, 528, 529. 
 
 v. Kelly. 88, 545. 
 
 v. Williams, 619. 
 Horwitz v. Ellinger, 27, 566, 601. 
 Hospes 7 . Northwestern Mfg., etc., Co., 
 
 237- 
 Houck v. Heinzman, 21. 
 Houseman z\ Grossman, 244. 
 Houston v. Blackman, 395. 
 Hovenden 7'. Lord Annesley. 40, 512, 
 
 513- 
 Hovey v. Elliott, 260, 315. 
 
 v. Holcomb, 294, 736. 
 How 7. Taylor, 464. 
 Howard v. Leonard, S6, 87, 638. 
 
 7. Prince, 136, 449, 451. 
 
 V. Rynearson, 392. 
 
 7. Sheldon, 150. 
 Howard Express Co. 7>. Wile, 499. 
 Howard Ins. Co. v. Halsey, 674. 
 Howard Nat. Bank v. King, 123. 
 Howe 7. Bishop, 107, 164, 358. 
 
 7. Johnson, 454. 
 
 V. Ward, 44. 
 
 v. Whitney, 142. 
 Howe Machine Co. v. Claybourn. 357, 
 
 692. 
 Howell v. Donegan, 13. 
 
 1 . Edgar, 19. 
 
 v. Mitchell, 374. 
 
 7. Thompson, 182. 
 1 lowland v. Blake, 13. 
 Howse v. Moody, 257, 263. 
 Howson v. Hancock, 712. 
 Hoxie v. Price, 1S8, 246, 527, 529. 
 I [oxsey v. I loxsey, 640. 
 I loyt, Estate of, 062. 
 
 v. Godfrey, 34, 54, 339.
 
 References'] TABLE OF CASES. [arc to pages. 
 
 XXXV11 
 
 Hoyt & Bros. Mfg. Co. v. Turner, 692. 
 H. T. Simon-Gregory Co. 7. McMahan 
 489. 
 
 v. Schooley, 673, 679. 
 Hubbard v. Allen, 374, 394, 430, 504. 
 
 v. Hubbard, 100. 
 
 v. McNaughton, 577. 
 
 v. Moore, 389. 
 Hubbell v. Currier, 323. 
 
 v. Lerch, 219. 
 
 v. Meigs, 9. 
 
 v. Merchants' Nat. Bank, 251. 
 Hubler v. Waterman, 576. 
 Hudgins v. Kemp, 306, 415, 426. 
 Hudnal v. Wilder, 224, 672. 
 Hudson v. Osborne, 72. 
 
 v. Plets, 68, 69, 116. 
 
 7'. White, 716, 717. 
 Hudspeth v. Harrison, 89. 
 Huebler v. Smith, 452. 
 Huey's Appeal, 31,93. 
 Huggans v. Fryer, 494. 
 Huggfns v. Perrine, 206. 
 Hughes v. Bell, 523. 
 
 v. Bloomer, 592. 
 
 v. Cory, 36, 444, 618, 625, 628. 
 
 v. Epling, 618. 
 
 v. Littrell, 515. 
 
 v. Monty, 489. 
 
 v. Northern Pacific R. R. Co., 295. 
 
 v. Roper, 411. 
 Hughitt v. Hayes, 562. 
 Huguenin v. Baseley, 77, 127. 
 Hugunin v. Dewey, 31, 92. 
 Hugus v. Robinson, 455. 
 Huiskamp v. Moline Wagon Co., 390. 
 Hulings v. Hulings Lumber Co., 5S0. 
 Hull v. Deering, 341, 563. 
 
 v. Hull, 243. 
 
 v. Sigsworth, 453. 
 Humbert Trinity Church, 31. 
 Hume v. Beale, 512. 
 
 v. Randall, 78. 
 Humes v. Scruggs, 30, 146, 212, 302, 
 
 311, 312, 534. 
 Humphrey v. Spencer, 60, 61, 182. 
 Hun v. Cary, 262. 
 Hungerford v. Earle, 406, 419. 
 Hunsinger v. Hofer, 183. 
 Hunt v. Bender, 740. 
 
 v. Conrad, 553. 
 
 v. Field, 140. 160. 
 Hunter v. Bradford, 305. 
 
 v. Corbett, 626. 
 
 v. Hunter, 294. 
 Hunterdon Freeholders v. Henry, 661, 
 
 662. 
 Hunters v. Waite, 33, 365. 
 Huntington v. Attrill, 269. 
 
 v. Saunders, 326. 
 Huntley v. Kingman, 27, 49, 703. 
 Huntzinger 7'. Harper, 501 
 Hurd v. Ascherman, 304. 
 Hurlburd v. Bogardus, 431, 464. 
 
 Hurley v. Osier, 669. 
 1 1 uschle v. Morris, 454. 
 1 [ussey 7'. Castle, 528. 
 Hussman, /// re, 311. 
 1 lutciieson 7. Peshine, 615. 
 Hutchins v, Gilchrist, 466. 
 
 v. Heywood, 315. 
 
 7'. Hutchins, tig. 
 Hutchinson v. Bolt/., 529, 545. 
 
 v. First Nat. Bank, 232, 273, 277, 
 280, 41 -v 
 
 '■. Lord, 586. 
 
 7'. Murchie, 207. 
 Hutton v. Benkard, 77. 
 Hyde v. Chapman, 177. 
 
 v. Ellery, 103, 332. 
 
 v. Frey, 531. 
 
 t. Woods, 65, 7... 87, >^- : , 657. 
 Hyman 7'. Kelly, 336. 
 Hymes v. Fstey, 311. 
 Hyslop z\ Clarke, 577. 
 
 Idaho, The, 64. 
 
 Iley v. Niswanger, 209. 
 
 Imhoff s Appeal, 93. 
 
 Importers' &T. Nat. Bank v. Quacken- 
 
 bush, 114, 115, 142, 147, 151 177. 
 Imray v. Magnay, 133. 
 Ingalls v. Herrick, 449, 459. 
 Inglehart v. Thousand Island Hotel 
 
 Co., 20, 22, 506. 
 Ingliss v. Grant, 412. 
 Inhabitants of Pelham v. Aldrich, 182. 
 Inloes 7'. Amer. Exch. Bank, 20. 
 Inloes' Lessee v. Harvey, 260. 
 Innes v. Lansing, 220, 579. 
 Innis v. Carpenter, 370, 480. 
 Insurance Co. v. Shoemaker, 418. 
 Ionia Co. Sa. Bank v. McLean, 392, 541. 
 Irish v. Bradford, 31)1. 
 
 7'. Clayes, 345. 
 Irons v. Manufacturers' Nat. Bank, 
 
 238. 
 Isaac 7' Wilisch, 307. 
 Iselin 7'. Peck, 485. 
 Iseminger v. Criswell, 524. 
 Isham v. Schafer, 60. 
 Ithaca G. L. Co. v. Treman, 54. 
 Ives v. Stone, 424. 
 
 Jackman v. Robinson, 255, 258, 259, 264. 
 Jacks v. Nichols, 302. 
 Jackson v. Andrews, 297. 
 
 v. Badger, 377. 
 
 v. Burgott, 133. 
 1 ■ irnell, 562. 
 
 v. Davison, 570, 572. 
 
 7'. Duchaire, 712. 
 
 7'. Edwards, 317. 
 
 v. Garnsey, 716. 
 
 v. Given, 509. 
 
 v. Glaze, 357. 
 
 v. Hart, 306. 
 
 v. King, 10, 112.
 
 xxxvni 
 
 References] TABLE OF CASES. {are to pages. 
 
 Jackson :■. Lewis, 187,360. 
 mas, 712. 
 v. L' isee, 553. 
 : . Mather, 690. 
 i . Middlelon, 
 : . Miner, 191, 3S5. 
 
 Myers, : t, 133, i>2, 183, 221, 
 244. 245. 
 ' . ler, [94. 
 Post, I'll. 20S. 
 
 ml/. 643. 
 
 S ward, 51, 1S2. 
 - >n Bank v. Durfey, 3SS. 
 Jacobs v. Allen, B. 
 
 v. Morrison, 360, 482, 
 
 6S6. 
 v. Totty, 42-v 
 Jacoby ': Parkland Dist. Co., 92. 
 Jacoby's Appeal, 109, 133. 
 Jacot v. Boyle, 104. 
 Jaeger v. Kelley, 9, 357. 358, 413. 
 
 5 5 7- 
 Jaffers v. Aneals, 417. 
 Jaffray v. Greenbaum, 626, 628. 
 
 v. McGehee, 47, 135, 570, 572. 
 Jaffrey v. Brown, 42'/. 
 
 v. McGough, 524. 
 James v. Bird, 726. 
 . Gard, 640. 
 v. \'an Duyn, 7. 
 James Goold Co. v. Maheady, 528. 
 Jamison v. Bagot, 476. 
 v. Beaubien, 133. 
 v. King, 415. 
 McNally, 374. 
 Janes v. Whitbread, 412, 5S1. 
 Janvrin v. 1 
 
 Jaques v. Greenwood, 601. 
 Jarboe v. Hey, 644, I 
 Jauretche v. Proctor, 640. 
 Jeffres v. Cochrane, 709. 
 Jencks v. Alexander, [91. 
 Jenkins v. Clement, iSS, 189, 190. 
 v. Einstein, 433. 
 7 . Eldredge, 67 ;. 
 ,- . 1"' iwler, 567. 
 
 [81. 
 Jenkyn v. Vaughaif, 
 Jenne v. Joslyn, 474, 487. 
 Jenney v. Andrews, 76, 77. 
 JenniiiL'.^ 2 . I loward, 279. 
 
 Prentice, 5 1 
 Jenny 1 . Jenny 
 
 irbonate Nat. 1 Ian li 
 v. M' Carter, z 
 ll ilse, 276, 
 jetton v. '1 '■!»■ y 
 Jewell v. Knight, 10, 12, 13, 28, 3", 628, 
 
 741. 
 v. Parr, 499. 
 7 . Porter, 214, 
 an, 8. 
 
 ' . iyei 
 
 525, ~< 4, 707. 
 
 Jiggitts v. Jiggitts, 135, 543. 
 Jimmerson v. Duncan, 107. 
 Johnson r\ Alexander, 58. 
 
 v. Cushing, 76. 
 I Ikins, 89. 
 
 v. Farnum, 332. 
 
 v. Gibson, 299, 697. 
 
 v. Griffin, 739. 
 
 V. Herring, 592. 
 
 v. Holloway, 454. 
 
 r\ Jones, 155, 166, 224. 
 
 7'. Lovelace, 4S5. 
 
 v. McAllister, 576, 587. 
 
 v. Powers, 154, 226, 227. 
 
 v. Rapalyea, 604. 
 
 v. Rogers, 298, 509. 
 
 v. Sharp, 548. 
 
 v. Willey, 462. 
 Johnston 7'. Dick, 436. 
 
 v. Johnston, 524. 
 
 v. Jones, 499. 
 
 v. Thompson, 496. 
 
 v. Tuttle Bros., 19. 
 
 v. Zane, 194, 660. 
 Joiner v. Franklin, 524. 
 Jones, /;/ re, 535. 
 
 v. Barkley, 712. 
 
 v. Bryant, 62. 
 
 v. Clifton, 78, 538. 
 
 v. Comer, 726. 
 
 v. Conn. Bank, 315. 
 
 v. Conoway 5 14. 
 
 v. Davenport-, 226. 
 
 v. Easley, 469. 
 
 v. Graham, 141, 619. 
 
 v. Green, 6, 97, 140, 145, 147, 155, 
 159, 167. 
 
 v. Huggeford, 626. 
 
 7'. Jones, 47S. 
 
 v. King, 181. 
 
 v. Light, 194, 425, 665, 670, 719. 
 
 7'. Massey, 274. 
 
 7'. Morrison, 290. 
 
 v. Nevers, 440. 
 
 v. Pugh, 335. 
 
 7'. Rahilly, 737. 
 
 v. Reeder, 323. 
 
 v. Reese, 660. 
 
 7'. Shaddock, S3. 
 
 v. Simpson, 7, 8, 9, 10, 12, 365, 
 398, 478. 
 
 v. Smith, 674. 
 
 7'. Snyder, 491. 
 
 v. Syer, 580, 581, 582. 
 
 v. Van Doren, 83. 
 Jones' Appeal, 383. 
 Jordan 7'. Gillen, 553. 
 
 t. National Shoe & L. Bank, 562. 
 
 7'. White, 81, 704. 
 Joseph v. Levi, 609, 619. 
 
 v. Mc< rill, [60, 333. 
 Josselyn v. Josselyn, 646. 
 Journeay 7\ Brown, 336. 
 Jourolmonz/, Massengill, 655, 658, 660.
 
 References'] TABLE OF CASES. [arc to pages. 
 
 Judson v. Courier Co., 252. 
 Justh v. Wilson, 452, 4S0. 
 Juzan v. Toulmin, 7. 
 
 Kahanaiki v. Kohala Sugar Co., 639. 
 
 Kahley, In re, 619, 623. 
 
 Kaighn v. Fuller, 338. 
 
 Kain v. Larkin, 186, 1S7, iSS, 192, 244, 
 
 272, 274, 277, 377, 426, 4S0, 727. 
 Kaine v. Weigley, 9, 13, 15. 
 Kalk v. Fielding, 407, 618. 
 Kalmus v. Ballin, 232, 318. 
 Kampz'. Kamp, 165. 
 Kanawha Valley Bank v. Atkinson, 524. 
 
 v. Wilson, 60, 198. 
 Kane v. Bloodgood, 516. 
 
 v. Drake, 451. 
 
 v. Hibernia Ins. Co., 15. 
 
 v. Roberts, 212. 
 Kankakee W. N. Co. v. Kampe, 167. 
 Kansas City Packing Co. v. Hoover, 44, 
 
 583, 584. 5S7- 
 Kansas Pacific Ry. Co. v. Couse, 460. 
 Karll v. Kuhn, 410. 
 Karst v. Gane, 142, 633. 
 Karstorp's Estate, 344. 
 Kasson v. People, 126. 
 Kaufer v. Walsh, 24, 368, 501. 
 Kaufman v. Whitney, 528. 
 Kavanagh v. Beckwith, 568. 
 Kayser v. Heavenrich, 578. 
 Keach, In re, 74. 
 Keagy v. Trout, 8, 25, 408. 
 Keating v. Retan, 502. 
 Keel v. Larkin, 717, 725. 
 Keen v< Kleckner, 387, 704. 
 Keener v. Keener, 3S1. 
 Keeney v. Good, 539. 
 
 v. Home Ins. Co., 236. 
 Keep v. Sanderson, 5S6, 587. 
 Keevil v. Donaldson, 5S4. 
 Kehr v. Smith, 209, 538, 541. 
 Keith v. Fink, 389. 
 
 v. Proctor, 406. 
 Kellar v. Taylor, 366, 675. 
 Keller v. Blanchard, 451. 
 
 v. Paine, 124. 
 
 v. Payne, 161. 
 Kelley v. Connell, 529. 
 
 v. Flory, 390, 563. 
 
 v. People, 495. 
 Kelley-Goodfellow Shoe Co. v. Scales, 
 
 59i- 
 Kellog v. Richardson, 594. 
 Kellogg v. Aherin, 309, 357. 
 
 v. Barber, 607. 
 
 v. Cayce, 563. 
 
 v. Clyne, 407, 500. 
 
 z'.Olmsted, 264. 
 
 v. Root, 432. 
 
 v. Slauson, 8, 478, 585, 5S6, 606, 
 607. 
 
 v. Slavvson, 7. 
 Kelly v. Baker, 564. 
 
 Kelly v. Campbell 4S8. 
 
 v. Crapo, 615. 
 
 v. Fleming, 434. 
 
 V. Lane, 241. 
 
 7'. Lenihan, 2<>. 
 
 v. McGrath, 523, 524. 
 Kelsey v. Kelley, 
 Kemp v. Folsom, 527. 
 
 7'. Small, 423. 
 Kempner v. Churchill, 7, 11, 30,374, 
 
 375, 405, 414. 
 Kempton v. Hallowell, 660. 
 Kendal ,-. \\'> >od, 391 ». 
 Kendall v. Fitts, 464. 
 
 v. New Eng. Carpet Co., 580. 
 
 7'. Samson, 450. 
 Kennedy t. Barandon, 316. 
 
 7'. Creswell, 226, 227. 
 
 v. Divine, 490, 495, 496. 
 
 7 r . Gibson, 263. 
 
 v. Green, 672, 674, 693. 
 
 v. Lee, 526, 534. 
 
 7'. McKee, 564. 
 
 v. Nunan, 315. 
 
 7'. Thorp, 234, 6or. 
 Kensington v. White, 288. 
 Kent v. Curtis, 140.,, 
 
 v. Lasley, 13. 
 
 v. Riley, 540. 
 Kepple's Appeal, 640. 
 Kerbs v. Ewing, 594. 
 Kercheis v. Schloss, 61 r. 
 Kerr v. Hutchins, 316, 411. 
 Kesner v. Trigg, 524, 540. 
 Kessinger v. Kessinger, 386. 
 Ketchum, Matter of, 69. 
 Keteltas 7'. Wilson, 616. 
 Kevan v. Crawford, 408. 
 Keys v. Grannis, 520. 
 Keyser v. Angle. 667. 
 Keyser's Appeal, 663. 
 Kibbe v. Wetmore, 123. 
 Kidd v. Johnson, 72. 
 
 v. Rawlinson, 49, 446. 
 Kidder 7'. Horrobin, 229. 
 Kidney t. Coussmaker, 210. 
 Kilbourn v. Sunderland, 98, 112, 113. 
 Kilbourne v. Fay, 232. 
 Killam 7'. Perce, 487. 
 Killian v. Clark, 7, 206. 
 Killinger 7-. Reidenhauer, 543. 
 Kilner, Ex parte, 714. 
 Kilpatrick-Koch D. G. Co. v. Strauss, 
 425. 
 
 Kilroy v. W I, -7. 638, 650, 661. 
 
 Kimball v. Fenner, 31)4, 529. 
 
 7'. Ilarman, 118. 
 
 v. Noyes, 82. 
 
 v. Thompson, 25. 
 Kimble v. Smith, 366. 
 Kimmel v. McRight, 
 Kinealy v. Macklin, 318. 
 King v. Bailey, 454. 
 
 v. Dupine, 40, 107.
 
 xl 
 
 nets] TABLE OF CASES. 
 
 King v, Holland Trust Co., 676. 
 
 1 . 1 [ubbell, 4 
 
 Moon, 1 12. 402, 429. 
 
 v . P J 49S. 
 
 ! . Ruble, 
 
 v. Russell, 4"4. 4"?. 435- 
 
 p. Tharp, 141'. 475. 
 
 ; . ["rice, 1 26, 297. 
 
 v. Wilcox, 341, 346, 410. 
 King's Estate, 
 
 Thompson, 27S. 
 King (The). See Rex. 
 
 •1 r . Stroh, 90. 
 Kingsbury v. Karle, Si. 
 Kinnan v. Guernsey, 77. 
 Kinnard 7. Daniel, 53S. 
 Kinsley v. Scott, 122. 
 Kip v. Bank of N. V.. 553. 
 Kipling v. Corbin, 604. 
 Kipp v. Hanna, 61, 210, 437. 
 
 v. Lamoreaux, 451. 478. 
 Kipper?. Glancey, 155, 169. 
 Kirby v. Boyette, 659. 
 
 v. Bruns, 60. 
 
 v. Ingersoll, 18. 
 
 v. Lake Shore & M. S. R. R. Co., 
 283, 5ii, 513, 515. 
 
 7. Masten, 492, 
 
 v. Schoonmaker, 389. 
 . Tallmadge, 500, 693. 
 Kirkbride, Re, 623, 626. 
 Kirkley v. Lacey, 531. 
 Kirkpatrick v. Clark, 717, 724, 732. 
 Kirksey v. Snedecor, 204, 212. 
 Kirtland v. Snow, 456. 
 Kiser :■. Dannenberg, 594. 
 Kissam v. Edmundson, 209. 
 Kisterbock's Appeal, 355. 
 Kitch v. St. Louis, K. C. & N. Rv. Co., 
 
 Kitchen v. McCloskey, 434, 435. 
 Kittering v. Barker, 301. 
 Kittredge v. Sumner, 357. 
 Kitts v. Will son, 423, 717, 719. 
 Klapp ; . Shirk, 564. 
 Klein v. Hoffheimer, - 2. 
 I lorine, 275. 
 7 . McNamara, 31. 
 V. Richardson, 421. 
 Kleine -■. Nie, 574. 
 Kiev v. I lealy, 349. 
 Klosterman v. Mason Co. Cent. R. Co. 
 139. 
 7 . Vader, 79, 394, 
 Klous v. Hennessey, 11^, rig. 
 Klumpp v. < rardner, 
 Knapp v. City of Brooklyn, 27 
 7 . Day, 527, - 
 
 I (omceopathic Mut. L. I. Co. 
 56. 
 v. Lee, 722. 
 
 1 rowan, - '.'.11. 
 
 mith, ^32. 
 Knatchbull v. Hallet, 83. 
 
 Knefler v. Shreve, 660. 
 Knight v. Forward, 212, 4O2, 492. 
 . (ilasscock, 273 
 
 - . Hunt, 712. 
 Knoop 7 . Kelsey, 12S. 
 Knott, Exparte, 670. 
 Knower v. Cadden Clothing Co., 495 
 070, 681, 686, 691. 
 
 v. Central Nat. Bank, 592, 716. 
 Knowles v. Toone, 13. 
 Knowlton v. 11 awes, 669. 
 
 v. Mish, 30, 539. 
 Knox v. McFarran, 133, 489. 
 
 7 . Moses, 351. 
 
 v. Yow, 94. 
 Knye v. Moore, 288. 
 Koenig -■. Steckel, 126. 
 Koster v. Hiller, 18S, 189. 
 Kraemer v. Adelsberger, 13. 
 Kreider's Estate, 93. 
 Kreth v. Rogers, 587. 
 Kreuzer v. Cooney, 453. 
 Krumdick v. White, 233. 
 Kruse v. Prindle,478. 
 Kuevan v. Specker, 31. 
 Kuhl 7'. Martin, 187. 
 Knhlman v. Baker, 513. 
 
 v. < )rser, 607. 
 Kurtz v. Miller. 694. 
 Kutz's Appeal, 524. 
 Kuvkendall v. McDonald, 378. 
 Kvello 7'. Taylor. 88. 
 Kyle v. O'Neil, 139. 
 
 La Bau v. Huetwohl, 335. 
 
 Lacassagne v. Chapius, 260. 
 
 Lachman v. Martin, 532. 
 
 Lacker v. Rhoades, 553. 
 
 Lackland v. Smith, 660. 
 
 Lackman v. Wood, I 
 
 La Crosse Nat. Bank v. Wilson, 58. 
 
 Lacrosse & M. R. R. Co. v. Seeger, 214. 
 
 Ladd t. Newell, 531. 
 
 v. Wiggin, 424- 
 Ladnier 7'. Ladnier, 405. 
 Lady Washington Consol. Co. ?■. Wood, 
 
 2S3, 694. 
 Laidlaw v. Gilmore, 415. 
 Laird v. Davidson, 4117, 525, 706. 
 Lake v. Billers, 520. 
 
 V. Morris, 430, 464. 
 Lake Shore Banking Co. v. Ftner, 
 
 602. 
 I. alone v. United Slates, 10. 
 Lamar Ins. Co. v. Moore, 237. 
 Lamb v. Stone, 1 1 7. 
 Lamberton v. Pereles, 661. 
 Lambrecht v. Patten, 527. 
 Lamont v. Cheshire, 315. 
 Lamperl v. I la\ del, 044. 
 Lamson v. Patch, 471. 
 Landauer v. Mack, 374. 
 Landes v. Brant, 698. 
 Landon v. Townshend, 267.
 
 References] TABLE OF CASES. \are to pages. 
 
 xli 
 
 Lane v. Lane, 640. 
 
 v. Lutz, 617, 618. 
 
 v. Starr, 630. 
 Lang v. Lee, 410, 619. 
 
 v. Stock well, 449, 463, 480. 
 Langford v. Fly, 51, 244, 429. 
 
 v. Thurlby, 525, 533. 
 Lanmon v. Clark, 29b. 
 Lant v. Morgan's Admr., 281. 
 Lario v. Walker, 640. 
 Larkin v. McAnnallv, 93. 
 
 v. McM ullin, 199. 
 Lassells v. Cornwallis, 76. 
 Lassiter v. Davis, 361, 376. 
 
 v. Hoes, 523. 
 Lathrop v. Bampton, 83. 
 
 v. Clapp, 235, 45S, 406, 555- 
 
 v. Clayton, 451, 465. 
 Latimer v. Batson, 446, 469. 
 Lattin v. McCarty, 104. 
 Laughlin v. Calumet & C. Canal & D. 
 
 Co , 509. 
 Laughton v. Harden. 51, 190, 197, 255, 
 
 360, 376, 437. 
 Lavelle v. Clark, 479. 
 Lavender v. Boaz, 432. 
 Law v. Payson, 476. 
 Lawrence v. Bank of the Republic 
 no, 242, 251, 252, 259, 290. 
 
 v. Davis, 554. 
 
 v. Fox, 81, 82. 
 
 v. Norton, 577, 578. 
 
 v. Tucker, 391, 396. 
 Lawson v. Ala. Warehouse Co., 407. 
 
 v. Funk, 354, 355. 
 
 v. Moorman, 476. 
 Lawton v. Buckingham, 396. 
 Lay v. Neville, 454. 
 Lea v. Hinton, 542. 
 Leach v. Flack, 668. 
 
 v. Francis, 357. 
 
 v. Kelsey, 231. 
 
 v. Shelby, 394, 396. 
 Leadman v. Harris, 23. 
 Leasure v. Coburn, 405. 
 
 v. Forquer 273. 
 Leather Cloth Co v. Amer. Cloth Co., 
 
 72. 
 Leavitt v. Beirne, 650. 
 
 v. Blatchford, 703. 
 Ledyard v. Butler, 503, 670. 
 Lee v. Chase, 227. 
 
 v. Cole, 232, 318, 327, 526, 527. 
 
 v. Figg, 360, 361, 376. 
 
 v. Kilburn, 484, 487. 
 
 v. Lamprey, 495. 
 
 v. Lee, 278. 
 
 v. Pearce, 15. 
 Leeds v. Cameron, 391. 
 Le Fevre v. Phillips, 149, 169. 
 Leffel v. Schermerhorn, 427. 
 Leffingwell v. Warren, 571. 
 Lega:ett v. Standard Oil Co., 508. 
 Le Goaster v. Barthe, 132. 
 
 Legro v. Lord, 31, 88. 
 Lehman v. Bentley, 391, 397. 
 
 v. Greenhut, 41 1. 
 
 v. Kelly, 63. 
 
 v. Meyer, 293. 
 
 v. Roseni^aitcn, 550. 
 Lehmberg v. Biberstein, 212. 
 Leicester v. Rose, 712, 
 Leigh v. Harrison, 653, 655, 660. 
 Leighton v. Orr, 29, 
 Leiman, Matter of, 232. 
 Leitch v. Hollister, 577, 609. 
 
 v. Wells, 298, 299. 
 Leland, /;/ re, 232. 
 Lemmon v. People, 269. 
 Le Neve v. Le Neve, 683. 
 Lenox v. Roberts, 615. 
 Leonard v. Baker, 419. 
 
 v. Bolton, 183, 194. 
 
 v. Bryant, 476. 
 
 v. Clinton, 56, 57, 542. 
 
 v. Forcheimer, 309. 
 
 v. Green, 253. 
 
 v. Nye, 552. 
 Le Page v. Slade, 358. 
 Leppig v. Bretzel, 434. 
 Leque v. Smith, 8, 668. 
 Lerow v. Wilmarth, 189, 437, 717. 
 Le Roy v. Dunkerly, 315. 
 Lesem v. Herriford, 457. 
 Lesher v. Getman, 557. 
 Leukener v. Freeman, 245. 
 Levy v. James, 547. 
 Levy's Accounting, 550. 
 Lewis, Matter of, 551. 
 
 v. Burnham, 274. 
 
 v. Caperton, 428. 
 
 v. Castleman, 212. 
 
 v. Miller, 548. 
 
 v. Palmer, 222, 223. 
 
 v. Rogers, 146, 476. 
 
 v. St. Albans Iron & Steel Works. 
 290. 
 
 v. Shainwald, 131. 
 
 v. Simon, 203. 
 
 v. Smith, 122. 
 
 v. Wilcox, 462, 490. 
 Lexington v. Butler, 263. 
 Lichtenberg v. Herdtfelder, 140, 145, 
 
 151, 155, 156, 225, 233, 710. 
 Lidderrla.le v. Robinson, 348. 
 Lightfoot v. Wallis, 618. 
 Lillard v. McGee, 39, 221, 244. 
 Lillie v, Wilson, 133. 
 Lillis v. Gallagher, 725. 
 Liming v. Kyle, 4:4. 
 Lincoln v. Clarlin, 495. 
 Lincoln's Ex'x v. Foster, 371. 
 Lindell Real Estate Co. v. Lindell, 740. 
 Lindle r\ Neville. 409. 
 Lindley v. Cross, 169. 
 Lindsay v. Harrison, 661. 
 Lindsey r\ Delano, 475. 
 Lingan -■. Henderson, 304.
 
 xlii 
 
 ices] TABLE OF CASES [are to pages. 
 
 Lininger v. Herron, 434. 
 
 Raymond, I 
 Linn v. Wright, i = . 
 Linton :-. Butz, 403, 466. 
 Lion, The, 
 
 Lionberger r. Baker, 414. 
 Lipperd : . Edwards, - 
 Lippincott v. Evens 053.661. 
 Lishy : . Perry, 31. 
 Litchfield 1 . White. 
 Little v. Lichkoff, 495. 
 Littleton v. Littleton, 543. 544. 
 Livermore v. Boutelle 183, 222, 526. 
 
 v. McNair, 114. 
 
 Northrup, 565 59S. 
 Rhodes 605 
 Livey v. Winton, 43 ; - 
 Livingston v. Livingston, 223. 
 Lloyd : . Fi iley, 71 7. 
 
 v. Fulton, 29, 47, 113, 135, 1S6, 
 i-7. E88, 351, 376, 3S7, 437, 
 
 v. Passingham, 335. 
 Load v. Green, 669. 
 Lobstein v. Lehn, 340. 
 Locke v. Lewis, 100. 
 v. Mabbett, 86. 
 Lockhard :■. Beckley, 13, 15, 30, 33, 
 
 '99. 365- 
 Lockyer v. Savage. 647. 
 Loehr v. Murphy, 187, 2or. 
 Loeschi^k v. -Addison, 194. 
 
 Bridge, 301, 427, 42S. 
 Logan v. Brick. 17. 
 
 . Logan, in. 
 London v. Martin, 603. 
 Long -■. Dollarhide, 529. 
 
 :■. Knapp, 4^5. 
 Loomis v. Tifft, 156. 223, 724. 
 Loos v. Wilkinson, 62, 232, 321, 340, 342, 
 
 343. 345. 479> 1-7. 189, t93, 559- 
 Lord ?■. Bunn, 646. 
 
 I (evendorf, 562. 
 i . I [arte, 58, 72. 
 Lord Cranstown v. Johnston, 304. 
 Lore v. Dierkes, 25, 225, 260, 343, 349, 
 
 LoririL; v. Dunning, 415. 
 I Stanlej - 7 . 
 
 -< r, 244. 
 1 reyer. 330. 
 . M ikals, 155. 
 1 rillender, 640, 643, 
 -. ingsland, 640, 643. 
 Bartlett, 1 5 (. 
 . Man o, 107. 
 
 Wortman, 416, 434, 703. 
 . Matson, 1- 1. 
 Lowery v. Clinton, =42. 
 ry v. !'•'■' kner, 15. 
 I ter, 230. 
 v. Fisher, 181. 
 v. Pinson, 221. 
 
 Lowry v. Tew, 519. 
 Lucas v. Brooks, 542. 
 Ludlow v. McBride, 469. 
 
 . Simond, 312. 
 Ludwig *. Highley, 468. 
 Lukins v. Aird, 23, 25, 33, 355, 424, 
 
 481 , 621, 622, 034. 
 Luna v. Inhab. of 1 yngsborough, 488. 
 Lush v, Wilkinson, 80. 
 Lux v. Davidson, 143, 158. 
 Lycoming Rubber Co. v. King, 425. 
 I. veil v. Supervisors of St. Clair, 269. 
 Lyford v. Thurston, S3. 
 Lyman z\ Place, 262. 
 Lynch z . Crary, ior. 
 
 v. Johnson, 115, 129, 130, 708. 
 Lynchburg Iron Co. v. Taylor, 249. 
 Lynde v. McGregor, 61, 127, 231, 406. 
 Lynn v. Smith, 95. 
 Lyons r. Leahy, 676, 68i. 
 
 v. Murray, 150. 
 Lytle v. Beveridge, 656, 657, 658. 
 
 Maass v. Falk, 221,233, 602, 603,704,708. 
 McAfee v. McAfee, 292. 
 McAllaster v. Bailey, 151. 
 McAlpine v. Sweetser, 736. 
 McAninch v. Dennis, 278. 
 McArtee v. Engart, 296. 
 McArthur v. Hoysradt, 66, 341. 
 
 v. Scott, 249. 
 McAuliffe 7 . Farmer, 140. 
 McBurney v. Wellman, 423. 
 McBurnie, Ex parte, 383, 536. 
 McCabe 7'. Brayton, 501. 
 McCaffrey v. Hickey, 335. 
 McCain v. Wood, 394. 
 McCall v. Pixley, 227, 243. 
 McCalmont 7'. Lawrence, 176,178,214, 
 
 316. 
 McCanless 7'. Flinchum, 376. 
 McCarron v. Cassidy, 423. 
 McCarthy v. Goold, 67. 
 
 7'. Scanlon, 329. 
 McCartin v. Perry, 230. 
 McCartney v. Bostwick, in, 153, 165, 
 
 177- 
 McCarty 7-. F"letcher, 430. 
 McCaskle v. Amarine, 394. 
 
 . Rhodes, 297. 
 Ml Clair ■■. Wilson. 354. 
 McClaugherty r. Morgan, 193. 
 McCleary v. Ellis, 639. 
 McCleery v. Allen, 584. 
 McClellan v. Pyeatt, 37. 
 
 -,'. San ford, 13. 
 McCleskey v. Leadbetter, 717. 
 McClintock v. Loisseau, 718. 
 McCloskey i>. Stewart, 63. 
 McClure v. Cook, 659. 
 
 v. Goodenough, 560. 
 
 v. Smith, 424. 
 McClurg v. Lecky, 575. 
 McCluskey v. Cromwell, 46.
 
 References'] TABLE OF CASES. [are t 
 
 Xllll 
 
 McCole v. Loehr, 278. 
 McConihe v. Derby. 320, 551, 625. 
 McConnel v. Dickson, 223. 
 McConnell v. Barber, 3S7. 
 
 v. Citizens' State Hank, 278. 
 
 v. Scott, 223, 391. 
 
 v. Sherwood, 557, 567, 590, 611. 
 McCool v. McNamara, 336. 
 McCormick v. Atkinson, 35. 
 
 v. Hyatt, 357. 
 
 v. Joseph, 370. 
 McCrasly v. Hasslock, 620. 
 McCrea v. Purmort, 396. 
 McCreary v. Skinner, 618. 
 McCulloch v. Hutchinson, 45. 
 McCulIough v. Colby, 175, 176. 
 
 v. Gilmore, 641, 643. 
 McCutcheon's Appeal, 57. 
 McDermott v. Blois, 140. 
 McDermutt v. Strong, 130, 169, 217. 
 Macdona v. Svviney, 446. 
 McDonald v. Bowman, 492. 
 
 v. Cash 563. 
 
 v. Farrell, 439. 
 McDonnell v. Eaton, 2SS. 
 McDonogh v. Murdoch, 640. 
 McDougall v. Page, 123, 51S. 
 McDowell v. Brown, 640. 
 
 v. Cochran, 166. 
 
 v. Goldsmith, 146. 
 
 v. Rissell, 497. 
 McElfatrick v. Hicks, 491. 
 McElmoyle v. Cohen, 154. 
 McElwain v. Willis, 143, 172, 173, 175, 
 
 271. 
 McEvony v. Rowland, 435, 502. 
 McEvoy v. Appleby, 84, 85, 650, 661. 
 McEwen v. Brewster, 661. 
 McFadden v. Mitchell, 190, 413, 415. 
 McFarland v. Bate, 563, 564. 
 
 v. Goodman, 31, 92. 
 McFarlane v. Griffith, 137. 
 McFerran v. Jones, 67. 
 McGahan v. Crawford, 61. 
 McGarvy v. Roods, 392. 
 McGay v. Keilback, 80. 
 McGee v. McGee, 543. 
 McGhee v. Importers' & T. Nat. Bank, 
 
 140, 451. 
 McGintry v. Reeves, 394. 
 McGlinsey's Appeal, 536. 
 McGoldrick v. Slevin, 332. 
 Macgregor v. Dover & Deal R. R. Co., 
 
 57o, 572. 
 McGuire v. Miller, 717. 
 Mcllhargy v. Chambers, 551, 554. 
 Mcllvaine v. Smith, 65, 660. 
 Mcintosh v. Ladd, 544. 
 
 v. Smiley, 461. 
 Mackason's Appeal, 76. 
 Mackay v. Douglas, 203. 
 MacKaye v. Soule, 334. 
 McKeeV Judd, 552, 553. 
 Mackellar'^. Pillsbury, 368, 405, 451. 
 
 McKenna v. Crowley, [31, 221 
 McKenzie's Appeal, <4<>. 
 
 McKeown v. Allen, 355, ■ 
 
 McKibbin v. Martin 1.03.431, 
 
 453. 463. 466. 
 Mackie 7-. Cairn-, 6 
 McKim ?'. rhompson, 304. 
 McKinley v. Bi >\\ e, 1 i- 1. 
 McKinney :•. Wade, 425. 
 McKinnon t. Reliance Lumber Co., 
 
 489. 
 McKinster v. Babcock, 396 
 McKnight v. Morgan, 224, 225. 
 McKown v. Furgason, 4-2. 
 
 7\ Whitmore, 285. 
 McLachlan v. Wright, 619. 
 McLain v. Ferrell, 2^4. 
 McLane v. Johnson, 196, 224, 489. 
 McLaughlin v. McLaughlin, 224. 
 McLean v. Cary, 313, 325. 
 
 v. Clapp, 698. 
 
 v. Lafayette Bank, 288, 623. 
 
 7'. Letchford, 309, 345. 
 
 7'. Meek, 154. 
 
 v. Weeks, 45. 
 McLendon v. Commrs. of Anson, 170. 
 McLeod v. First Nat. Bank, 83. 
 McLure v. Benini, 172. 
 McMahan v. Bowe, 31. 
 McMahon 7'. Allen, 231, 247. 
 McMaster v. Campbell, 230, 718. 
 
 v. Morrison, 64 <. 
 McMillan r. Knapp, 610. 
 
 7'. McNeill, 517, 518. 
 McMinn 7-. Whelan, 140, 159. 
 McMurtrie 7-. Riddell, 377. 
 McNally v. City of Cohoes. (.7.;. 
 McNaney v. Hall, 565. 
 Macomber v. Peck, 25, 4S0. 
 McPherson v. Kingsbaker, i<)4. 204. 
 McRea v. Branch Bank of Ala. 426. 
 McReynolds 7'. Dedman, 573. 
 Macungie Sav. Bank :. Bastian 
 McVeagh v. Baxter, 432. 
 McVeigh v. Ritenour, 183. 
 McVicker 7'. May, 434- 
 McWilliams v. Cornelius, 577. 
 
 7'. Rodgers. 420. 
 Maders v. Whallon, 7. tog, IIO. 
 Magawley's Trust, 209. 
 Magee v. Badger, ''-7. 
 Magirl v. Magirl, 433. 
 Magniac v. Thompson, 3- 
 
 593, 689. 
 Maher 7'. Hibernia Ins. Co. 271.. 
 Mahler v. Schmidt. 250, 252. 
 Mahr 7'. Norwich Union F. I. S<" .. 250, 
 
 258. 
 Maiders v. Culver's Assignee, 231. 
 Main 7'. Lynch, 557. 
 Malcolm 7'. Hodges, 20. 
 Malony 7'. Horan, 545. 
 Manbv :■. Scott, 2. 
 Manchester v. McKee, 151.
 
 xliv 
 
 -,J TABLE OF CASES. [are to pages. 
 
 Manchester v. Tibbeus. 386, 522, 523. 
 
 524. 
 Mandei i . Peay, 558. 
 Mandeville v. Avery, in. 234, 235. 342. 
 33- 
 . Rej w Ids, 14''- 47''- 
 Mandlebaum v. McDoneil, 640, 041. 
 Mangum v. Finucane 
 
 ittan Co. :. Evertson, 30- 
 Manikee \ . Heard. 543. 
 Manley v. Rassiga, 234. 
 Mann : . Appel, - 
 
 Manning v. Beck, 318, 597, 603, 708. 
 Carruthers, 527. 
 v. Chambers, (47. 
 
 I [ayden, 516. 
 : . Reilly, 353. 
 : . Riley, 53 s . 
 
 San [acinto Tin Co., 694. 
 Mansell v. Mansell, \;. 
 Mansfield :. Dyer, 666. 
 
 rst Nat. Bank, 232. 
 Manton v. Moore, 443. 45-. 
 Manufacturers' Bank r. Rugee, 452. 
 Manufacturing Co. v. Bradley, 113, 121, 
 
 141. 
 Mapes v. Scott. 335. 
 Mapleback, /// r< . 723. 
 Marcy v. Kinney, 133. 
 Marden v. Babcock, 362. 
 Mark's Appeal, 592. 
 Markey v. I'mstattd, 461. 
 Marks v. Bradley, 354, 389, 562, 568, 
 
 Marksbury v. Taylor, 15, 9S. 
 Marmon v. Harwood, 353, 362, 363. 
 Marrin v. Marrin, 319. 
 Marriott :. Givens, 407. 
 Marsh, Matter of, 553. 
 v. Bennett, 556. 
 
 . 1 tenson, 55. 
 v. Burroughs, 68, 84, 220, 260. 
 v. Dunckel, 4- 1 . 
 - Falker, 10, 12. 
 v. Bier, 140. 
 Marshall v. Croom, 61, 204, 435, 477 
 431. 
 - . Means, - 
 
 V. Roll, "2 12. 
 
 -■. Sherman, 269. 
 v. Van De Mark, 6 
 v. Whitney, [I 
 Marston v. Dresen, 275, 534. 
 
 :■. Vultee 
 Martin v. \dams, 464. 
 •lton, 224. 
 I ;■ . .'. . ; 
 I • 
 ! I 
 I llden, 164, 
 
 ,-2. 
 , I l.i . man 
 v, Kunzmullei 
 v. Margham, 647. 
 
 Martin r. Marshall, 688. 
 
 :. Martin-Wilson, etc., Co., III. 
 
 v. Michael, 140, 144, 159. 
 
 v. Root, So, 224. 
 
 v. Smith, 284. 
 
 v. Tidivell, 113, 121. 
 
 v. Walker. 183, 223. 
 Martin-Benin Merc. Co. v. Berkins, 
 
 619. 
 Martindale z\ Booth, 447. 
 Marx r\ Tailer, 260. 
 Maryland Grange Agency v. Lee, 658. 
 Mason v. Franklin, 406. 
 
 ?'. Lord, 247. 
 
 v. Bierron, 322, 323. 
 
 v. \'estal. 37, 274. 
 Massey v. Yancey, 538. 
 Massie v. Walts, 74. 
 Masson v. Bovet, 349. 
 Masterson -'. Little. 516. 
 Masterton -■. Beers, 352. 
 Mateer v. Hissim, 437. 
 Mathes v. Dobschuet/., 61, 358. 
 Mathews v. Feaver, 379, 412, 
 
 7 . Baradise, 660. 
 
 v. Boultney, 557, 564. 
 
 v. Reinhardt, 7, 413, 414. 
 Matson v. Melchor, 187. 
 Matthai v. Heather, 7, 204. 
 Matthews v. Ott, 550. 
 
 v. Rice, 358. 
 Mattingly v. Nye, 146, 205, 540. 
 Mattison v. Judd, 610. 
 Maule v. Rider, 694. 
 Mawman v. Tegg, 73. 
 Maxwell v. Kennedy, 510. 
 May v. first Nat. Bank, 551. 
 
 7\ Greenhill, 332. 
 
 7'. Le Claire, 694. 
 
 7 . State, Nat. Bank, 195, 197, 199. 
 
 7. Tenney, 548. 
 
 v. Walker, 577. 
 Mayer v. Clark, 102, 44S, 451. 
 
 7'. Hellman, 548, 599, 704. 
 
 7'. Webster, 400. 
 Mayers v. Kaiser, 95, 532. 
 Maynard v. Cleaves, 644, 660. 
 Maynes v. Atwater, 469. 
 Mayor of New York v. Brady, 476. 
 Mays -.'. Rose, 335. 
 Meacham v. Sternes, 556. 
 Mead "\ Combs, 353. 
 
 v. Dowd, 573. 
 
 7'. Gardiner, 450, 451. 
 
 v. Noyes, 429, 459. 
 
 v. Phillips, 556. 
 Meade v. Smith, 453, 460. 
 Meader v. Norton, 507. 
 Means v. Dowd, 26, 27, 33, 35, 620, 625. 
 
 v. Hicks 474. 477- 
 Mebane v. Lay ton, 217. 
 
 v. Mebane, '4, 65, 657, 659. 
 Mechanics' & T. Bank v. Dakin, 103, 
 no, 173, 174.
 
 References'] TABLE OF CASES. f are to Pages. 
 
 xlv 
 
 Meddowcroft v. Iluguenin, 29. 
 Medsker v. Bonebrake, 525. 
 Meeker v. Harris, 146. 150, 274, 476. 
 v. Saunders, 433. 
 r . Wilson, 446. 
 Megehe v. Draper, 92. 
 Mehaffey's Estate, 662. 
 Mehlhop v. Pettibone, 357, 47-. 
 Meigs v. Weller, 343. 
 Melbye v. Melbye, 725. 
 Melville v. Brown, 159. 
 Memphis & L. R. R. v. Dow, 348. 
 Menagh v. Whitwell, 339, 389. 
 Menken Co. v. Brinkley, 641. 
 Menton v. Adams, 706. 
 Menzies v. Pulbrook, 247. 
 Mercantile Trust Co. v. Wood, 625. 
 Mercer t. Mercer, 717. 
 
 v. Peterson, 714. 
 Merchant v. Bunnell, 532. 
 Merchants' Bank v. Thomson, 122, 545. 
 Merchants' Exch. Nat. Bank v. Comml. 
 
 Warehouse Co., 506. 
 Merchants' Nat. Bank v. Paine, 144, 
 
 155, 169. 
 Merchants' & M. Saw Bank v. Lovejoy, 
 
 63- 
 Merchants' & M. Tr. Co. v. Borland, 
 
 56, 57, 156. 
 Meredith v. Johns, 119. 
 Merrell v. Johnson, 190, 270, 278, 349. 
 Merriam v. Sewall, 160. 
 Merrick v. Butler, 722. 
 Merrill v. Englesby, 555. 
 
 v. Grinnell, 553. 
 
 v. Locke, 416, 426, 468. 
 Merriman v. Chicago, etc., R. R. Co., 
 
 219. 
 Merry v. Fremon, 156, 166, 223, 255, 
 
 264, 724. 
 Mertens v. Welsing, 414, 426, 431. 
 Merwin v. Richardson, 221. 
 Messersmith v. Sharon Sav. Bank, 131. 
 Messmore v. Huggard, 128. 
 Metcalf v. Munson, 484, 4S7. 
 
 v. Watertown, 142. 
 Metropolitan Bank v. Durant, 319, 415, 
 505. 
 
 v. Godfrey, 670. 
 
 v. St. Louis Dispatch Co., 516. 
 Metropolitan Nat. Bank v. Rogers, 194, 
 
 230. 
 Meux v. Anthony, 140, 169, 178. 
 
 v. Howell, 43, 412. 
 Meyer v. Lowell, 82. 
 
 v. Virginia & T. R. R. Co., 490. 
 Michael t. Gay, 309. 
 Michoud v. Girod, 516. 
 Micou v. Moses, 332, 336. 
 
 v. National Bank, 706. 
 Middleton v. Sinclair, 435. 
 
 v. Taber, 550. 
 Middletown Sav. Bank v. Bacharach, 
 288. 
 
 Miers :. Zanesville & M. Turnp. Co., 
 
 68, 709. 
 Miles v. Barry, 514. 
 I delen, 497. 
 
 v. Miles, 304. 
 Miller, Matter of, 46. 
 v. Bryan. 357. 
 v. Campbell, 56. 
 
 7'. COX, 524. 
 
 7. Davidson, 131, 169. 
 
 ■ . Dayton, [28, 183. 
 
 7. Parle, 319. 
 
 v. Florer, 81. 
 
 v. Fraley, 308. 
 
 7'. Garman, 461. 
 
 v. Hall, 251, 254. 257, 265. 
 
 7'. Hanley, 474, 494. 
 
 7. Hilton, 1S1. 
 
 v. Jamison, 249, 294. 
 
 v. Jones, 626, 628, 635. 
 
 v. Lacey, 454. 46C. 
 
 v. Lehman, 279. 
 
 v. Lockwood, 407, 450, 630. 
 
 v. Long island K. R. Co., 459. 
 
 v. McCoy, 396. 
 
 v. Mclntyre, 516. 
 
 v. Mackenzie, 236. 
 
 v. McKenzie, 396. 
 
 v. Miller, 45, 87, 140, 211, 545. 
 
 ads. Pancoast, 446, 451, 459, 626. 
 
 v. Post, 570, 572. 
 
 v. Sauerbier, 391. 
 
 v. Sherry, 129, 295, 296, 739. 
 
 v. Wilson, 437, 544. 
 Millholland 7'. Tiffany, 6^9, 692. 
 Millington 7'. Hill, 340, 342, 670. 
 Mills v. Argall, 717. 
 
 v. Block, 125, 140, 159. 
 
 v. Gore, 304. 
 
 v. Howeth, 690. 
 
 v. Parkhurst,. 233, 547, 552, 613. 
 
 v. Pessels, 5S9. 
 
 7'. Thompson, 492. 
 
 v. Van Voorhies, 134. 
 Milwaukee Harvester Co. t. Culver, 
 
 532. 
 Milwaukee & M.R.R.Co.r. Milwaukee 
 
 & W. R. R. Co., 247. 
 Minchin 7'. Minchin, 736. 
 Miner v. Lane, 107, 108. 
 
 v. Phillips, 371. 
 
 V. Warner, I S3. 
 Minor v. Mead, 228. 
 Mish v. Main, 484. 
 Mississippi Mills v. Cohn, 
 Missouri L. M. <\: S. Co. v. Reinhard, 
 
 241. 
 Mitchell v. Barnes, 335. 
 
 v. Bunch, 739. 
 
 v. Mitchell, 410, 4S1. 
 
 v. Stetson, 34. 
 
 v. Stiles, 319. 
 
 7'. Thompson, 514. 
 
 v. Van Buren, 319.
 
 X1V1 
 
 TABLE OF CASES. [are towages. 
 
 Mitchell v. West. 451, 466. 
 Winslow, 230, 626. 
 Mittnacht 1 . Kelly. 621, 622. 
 Mobile Sav. Hank v. McDonnell, 11. 
 
 477. 493- 
 Mobley v. Letts. 619. 
 Mohawk Bank r, 18, 176, 361, 
 
 Molitor v. Robinson, 451, 49S. 
 Moncure 1 . Hanson, 231. 
 Monell v. Scherrick, 410. 
 Monroe v. Douglass, 124. 
 . I [ussey, 44 () . 453- 
 
 Smith, 212, 366. 
 . rrenholm, 659. 
 Monti • Behrens, 647. 
 
 Montefiori . . Montefiori, 71S. 
 Monteith r. Bax, 20. 352, 36S, 531. 
 Montgomery v. Bayliss, 367. 
 Goo ba , 610. 
 Kirksey, 593. 
 Montgomery Web Co. v. Dienelt, 15, 
 
 240. 241, 401. 
 Moody v. Burton, 118. 
 Moog v. Benedicks, 409, 451. 
 . Farley, 435. 
 v. Talcott, 293. 
 Mooney v. Olsen, 442, 469. 
 Moore ? . Blondheim, 2114. 
 < a ird, 245. 
 V. Eastman, 644. 
 v. Flynn, 92. 
 v. Greene, 284, 2S6, 513. 
 v. Griffin. 607. 
 v. Hinnant, 43, 353- 
 ?•. Jordan, 730. 
 
 V. Kidder, Ki2. 
 
 v. Meacham, 4S7. 
 v. Meyer, 596. 
 v. Page, 522, 534, 53S. 
 7 . Roe, 424, -439. 
 
 7'. Schoppert, 144. 
 
 7 . Shields, 495. 
 
 v. Stege, 557, 012. 
 
 7'. United States, 400. 
 
 V. Williamson, 96, 075, GSl. 
 
 7'. Wood, 19, 24, 48 I . 
 1 Moorer v. M< m irer] 232. 
 Moores \ •. White, 68. 
 Moorman v. Shockney, 272. 
 
 v. I >awes, 100, 143. 
 Mori in-., d Banking Co. v. Whitaker, 
 
 Moreland v. Ati hison, 379. 
 Morford v. Dieffenbacker, 431. 
 Morgan, In n . 
 
 ibott, 1 --. 723. 
 7 . Ball, J57- 
 
 Bogue, 172. 280, 576. 
 Elam, 21). 
 v. I [arris 
 1 lei ki 1 
 v. Worden 
 ,n County v. Allen, 131. 
 
 Morit/. v. Hoffman, 1S9, 209, 211. 
 
 v. Miller, 337. 
 Morland v. Isaac, 542. 
 Morrill v. Kilner, 20. 
 
 7'. Little Falls Mfg. Co., 2S4. 
 Morris 7\ Lindauer, 347, 6S9. 
 v. Morris, 224. 
 7. Tillson, 396. 
 Morris Canal & B. Co. v. Stearns, 416. 
 Morrison v. Abbott, 92. 
 
 v. Atwell, 184, 213, 214, 242. 
 v. Clark. 437, 540. 
 v. Morrison. 183, 222, 244. 
 v. Oium, 45S, 463. 
 Morrow Shoe Mfg. Co. 7'. New Eng- 
 land Shoe Co., 359, 6S9. 
 v. Peabody, 139. 
 Morse v. Hill, 303. 
 
 7'. Riblet, 135. 
 Morton 7'. Morris, 354. 
 v. Noble, 545. 
 v. Ragan, 31,454. 
 v. Weil, 2S9. 
 Moseley v. Anderson, 92. 
 
 v. Moseley, 214, 225, 242, 723, 
 726. 
 Moses v. Micou, 659. 
 Motley v. Downman, 72. 
 
 v. Sawyer, 415, 416. 
 Mott v. Danforth, 120. 
 Mountford v. Taylor, 2S1. 
 Movius v. Lee, 262. 
 Mowry v. Agricultural Ins. Co., 391. 
 
 7'. Schroder, 11S. 
 Mover v. Dewey, 229, 230. 235. 
 Muchmore v. Budd, 575. 
 Muggeridge's Trusts, A'r. 647. 
 Mulford 7. Peterson, 4S, 97, 107, 108. 
 
 v. Shirk, 89, 574. 
 Mull v. Dooley, 421. 
 Mullanphy Sav. Bank v. Lyle, 701. 
 Mullen 7. Wilson. 1S9, 199, 204, 206, 
 
 366. 
 Muller v. Balke, 717. 
 
 v. Inderreiden. 31, 92. 
 7\ Norton, [g, 348. 
 Mulloy 7'. Voung, 610. 
 M ulock v. Wilson, 247. 
 Multnomah St. Ry. Co. v. Harris, 176. 
 M umper i ■. Rushmore, 450. 
 M unger v. Perkins, 545. 
 Municipal Ins. Ci . v. Gardiner, 739. 
 Munn 7. Marsh, 204. 
 Muni)/ 7'. Wilson, 350. 
 M unro 7'. Alaire, 61 '7. 
 Munroe 7\ Hall, 6 $9, 040. 
 Munson r\ Arnold, 413. 
 
 v. Carter, 88. 
 Murphy, In re, 647. 
 
 7 . Briggs, 320, 347, 350, 666, 670. 
 
 671, 7"4- 
 v. Crouch, 31. 
 7'. Hubert, 734. 
 Murray v. Ballou, 297.
 
 References'] TABLE OF CASES. [are towages. 
 
 xlvii 
 
 Murray v. Briggs, 267, 268. 
 
 v. Burtis, 368. 
 
 v. Fox, 252. 
 
 v. Green, 640. 
 
 v. Hay, 215. 
 
 v. Judson, 506. 
 
 v. McNealy, 458. 
 
 v. Murray, 544. 
 
 v. Riggs, 634, 702. 
 
 v. Rottenham, 517. 
 
 v. Walker, 423. 
 Murtha v. Curley, 293, 294, 324, 330. 
 Musselman v. Kent, in, 
 Mutual Life Ins. Co. v. Bowen, 121. 
 
 v. Shipman, 117. 
 Myers v. Becker, 321, 555. 
 
 v, Davis, 562. 
 
 v. Estell, 336. 
 
 v. Fenn, 220. 
 
 v. Harvey, 469. 
 
 v. Sheriff, 8, 274. 
 
 Nadal v. Britton, 358, 418. 
 
 Naglee's Appeal, 640. 
 
 Nail v. Punter, 77. 
 
 Nairn v. Prowse, 383. 
 
 Nance v. Nance, 88, 382, 530. 
 
 Nantes v. Corrock, 58, 67. 
 
 Nantz v. McPherson, 689. 
 
 Nash v. Geraghty, 213. 
 
 National Bank v. Barkalow, 274, 347 
 
 v. Beard, 489. 
 
 v. Carpenter, 284, 511. 
 
 v. Dillingham, 269. 
 
 v. Insurance Co., 83. 
 National Bank of Balto. v. Sackett, 564. 
 National Bank of Metropolis v. 
 
 Sprague, 203. 
 National Bank of Oshkosh v. National 
 
 Bank of Ironwood, 485. 
 National Bank of Republic v. Dickin- 
 son, 523. 
 
 v. Hodge, 589. 
 National Bank of Rondout v. Dreyfus, 
 
 142. 
 National Bank of Troy v. Scriven, 561. 
 National Bank of West Troy v. Levy, 
 
 151, 156, 225. 
 National Butcher's & D. Bank v. Hub- 
 bell, 560, 561, 569. 
 National Park Bank v. Goddard, 163. 
 
 v. Lanahan, no. 
 
 v. Whitmore, 578, 604, 605, 613, 
 
 713- 
 National Shoe & L. Bank v. August, 
 
 634- 
 
 National Tel. Mfg. Co. v. Du Bois. 54. 
 
 National Tradesmen's Bank v. Wet- 
 more, 100, 106, 144, 149, 155, 166, 
 168, 169, 225. 
 
 National Trust Co. v. Miller, 239. 
 v. Murphv, 239. 
 
 National Tube Works Co. v. Ballou, 172. 
 
 Neal ?'. Clark, 339. 
 
 Neal v. Foster, 492, 493, 71 »>. 
 
 v. Williams, 45. 
 Neale v. Day, 64. 
 
 v. Neales, 295. 
 Neate v. Marlborough, 127. 
 Ni civ v. Jones, 220. 
 Neisler v. Harris, 369. 
 Nellis :■. Clark, 37, 722, 726. 
 Nelson v. Edwards, 615. 
 
 v. Frey, 90. 
 
 v. Henry, 421. 
 
 v. Kinney, 706. 
 
 v. Smith, 482. 
 Neppach v. Jones, 510 
 Nerac, Matter of, 58. 
 Neslin v. Wells, 422. 
 Neuberger :\ Keim, 181, 193, 195, 198, 
 
 203, 204, 205, 366. 
 Neusbaum v. Keim, 150. 
 Nevers n. Hack, 278, 279, 482. 
 Neville t'. Wilkinson, 719. 
 New v. Bame, 334. 
 New Albany v. Burke, 237, 694. 
 New Albany Ins. Co. -•. Wilcoxson, 451. 
 Newark v. Funk, 58, 67. 
 New Bedford Inst, for Savings v. Fair- 
 haven Bank, 34S. 
 Newdigate v. Jacobs, 149, 150. 
 Newell v. Cutler, 117. 
 
 v. Newell, 717. 
 
 7'. People, 46. 
 Newkerk v. Newkerk, 640. 
 Newland, Re. 542. 
 Newlin v. Lyon, 493, 495. 
 Newlove v. Callaghan, 64. 
 Newman :>. Black, 595. 
 
 v. Clapp, 611. 
 
 v. Cordell, 14, 16, 30, 280, 352, 
 432. 
 
 7'. Kirk, 402, 407. 
 
 v. Van Duyne, 270. 
 
 v. Willetts, 130, 172, 176. 
 New Orleans Pac. Ry. Co. v. Parker, 
 
 740. 
 Newton v. Bronson, 738. 
 N. Y. Commercial Co. v. Carpenter, 
 
 476. 
 N. Y. Guaranty & Ind. Co. r. Gleason, 
 
 495, 4a6- 
 N. Y. Life Ins. Co. v. Mayer, 313, 314. 
 N. Y. Mutual Life Ins. Co. v. Ann- 
 strong, 45, 400. 
 N. Y. & Harlem R. R. Co. v. Kyle, 4:>>. 
 N. Y. & New Haven R. R. Co. v. 
 
 Schuyler, 219, 263, 288. 
 Nicholas 7\ Murray, 229. 
 Nichols v. Eaton, 59, 65, 85, 87, B8, 91, 
 636, 643, 044, 645, (.47 
 650,653, 654, 657, 658, 61 
 v. Ellis, 364. 
 7'. Lew, 59. 64, 65, 135. 313. ' ' '■ 
 
 661. 
 
 - r. McCarthy, 72; 
 7'. McEwen, 550, 589
 
 xlviii 
 
 v«] TABLE OF CASES. \_are to pages. 
 
 Nichols v. Patten. 7, 45, 4(4. 717. 
 
 : . Pinner, 279. 
 
 - . Wallace, 537. 
 Nicholson v. Condon, 690. 
 
 v. Leavitt, 26, 551, 556, 575, 584, 
 631. 
 Nickell v. Handly, 651 ». 
 N . Crittenden, 12, 20, 671. 
 
 ty v. Mallery, 474, 497. 
 Nicoll v. Boyd, 337. 
 
 -4. 
 Nightingale v. Harris, 567. 
 Nimmo v. Kuykendall, 365. 
 Nininger v. Knox. 4^4. 
 Nippes' Appeal, 56, 541. 
 Niver v. Crane, 107, III, 165. 
 Noble v. Hammond, 29, 339, 51S. 
 
 v. I lines, 278, 519. 
 
 v. I lolmes, 143, 158. 
 . Noble, 717." 
 Noonan v. Lee, 274. 
 Norcutt v. Dodd, 51, 5S. 
 Nordlinger v. Anderson, 389, 562, 563. 
 Xurfdk & W. R. R. Co. v. Read, 552. 
 Norris v. Haggin, 50S, 513, 690. 
 
 v. Lake, 8, 408, 451. 
 North v. Bradway, 104, 215, 251, 290. 
 North Amer. Fire Ins. Co. v. Oraham, 
 
 155, 157. '75. 176. 
 Northcote, /;/ re, 640. 
 Northwestern Iron Co. r. Central Trust 
 
 Co., 128. 
 Norton v. Doolittle, 453, 461. 
 
 v. Matthews, 589, 6l< 1. 
 
 v. Norton. 209, 224. 
 Norwalk v. Ireland, 526, 527, 52S. 
 Norwegian Plow Co. v. Hanthorn. 
 Noyes v. Hall, 698. 
 
 v. Morrill, 491. 
 
 r. Sanger Bros., 590. 
 Nuckolls v. Pinkston, 4^3. 
 Nudd v. Hamblin, 285. 
 Nugent v. Nugent, 140. 
 Nunn 7 . \Vilsmore, 412. 
 
 Oatis v. Brown, 492, 493. 
 Oberholscr v. (ireenfieid, 100. 
 
 1 !k it/.er 7\ Herzen, 454. 
 < )' Brien v. Browning, 314. 
 7\ Chamberlain, 470. 
 ■ alter, 155, 169. 
 , Fitzgerald, 295. 
 7\ Whigam, 1 
 Ocean Nat. Bank v. Olcott, 108, 160, 
 
 163, i','., 177. 
 '1, kerman v. Cross, 123, 614. 
 mnell v. Kilpatrick, 357. 
 • ner v. Ward, 729. 
 
 .nor v. Boylan,i55. 
 7\ (ii)T<ir<i 
 ' >' Daniel V. Crawford, 209. 
 
 ' 1 I tell 7\ Burnham, 513. 
 Odell v. Flood, 
 
 v. Montross, 423. 
 
 O'Donnell v. Barbey, 75. 
 
 v. Hall, 474, 491, 497. 
 
 v. Segar, 15, 91. 
 Oelrichs v. Spain, 99, 113, 121, 178. 
 Offutt v. King, 155. 
 Ogden 7\ Arnot, 236. 
 
 v. Peters, 580, 599. 
 
 v. Prentice, 182. 
 
 v. Saunders, 517. 
 
 v. Wood, 84. 
 Ogden State Bank 7\ Barker, 485, 488. 
 Ogilvie 7\ Knox Ins. Co., 68, 240, 241. 
 O'Hare 7: Duckworth, 4S8. 
 Ohio Coal Co. t'. Davenport, 490. 
 Ohm v. Superior Court, 155. 
 Old Folks' Society v. Millard, 312. 
 
 < (ldham v. Oldham, 647. 
 Olive-Finnie Grocer Co. v. Miller, 577. 
 Oliver v. King. 1S4. 
 
 7\ Moore, 341, 397. 
 v. Pratt, 83, 2S8, 697. 
 Oliver Lee & Co.'s Bank v. Talcott, 
 
 23, 33- 
 Olney v. Balch, 75. 
 
 ' v. Tanner, 234, 235, 239, 564, 591. 
 Olson v. Scott, 7. 
 
 Omaha Hardware Co. r\ Duncan, 432. 
 O'Mahoneyw. Belmont, 339. 
 O'Neil v. Birmingham Brew. Co., 218. 
 
 v. Hudson Valley Ice Co., 81. 
 
 v. Patterson & Co., 666. 
 
 v. Salmon, 562. 
 Ontario Bank r\ Root, 274. 
 Ordendorf 7\ Budlong, 96, 10S, 246. 
 Oriental Bank r\ Haskins, 424, 722. 
 Orman r. English & S. Merc. Inv. 
 
 Trust, 620, 623. 
 Orr 7'. Gilmore, 316. 
 Orton z'. Madden, 332. 
 
 7\ Orton, 620. 
 Orvis 7\ Powell, 650. 
 Osborne v. Tuller, 453. 
 
 v. Wilkes, c,4, 95, 531, 532. 
 
 v. Williams, 727, 729. 
 Osen v. Sherman, 452, 457. 
 Osgood v. Laytin, 234, 237. 
 
 v. Ogden, 237. 
 
 7'. Thorne, 703. 
 Ostrander ?'. Weber, 219, 312. 
 Otis v. Sill, 457. 
 
 7'. Spencer, 538. 
 ( >tley r\ Manning, 29. 
 ( >u 7'. Smith, 312. 
 Overman 7'. Quick, 630. 
 Overman's Appeal, 662. 
 
 < )\ ermire v. Haworth, 168. 
 Overton v. Holinshade, 410. 
 Owen v. Arvis, 431, 564. 
 
 v. Body, 581. 
 Ownes 7'. Ownes, 725. 
 Oxley v. Lane, 640, 641. 
 
 Pabst Brewing Co. v. Butchart, 619. 
 Pa< e v. Pace, 654, 659.
 
 References'] TABLE OF CASES. [are to pages. 
 
 Pacific Bank 7'. Robinson, 74. 
 Pack v. Bathurst, 76, 77. 
 Packard v. Wood, 446. 449. 
 Paddon v. Taylor, 666, 669. 
 Page v. Dillon, 377. 
 
 v. Waring, 230, 673. 
 Paget v. Perchard, 619. 
 Pahquioque Bank v. Bethel Bank, 263. 
 Paige v. Cagvvin, 490. 
 Paine v. Lester, 614. 
 Painter v. Drum, 498. 
 Palen v. Bushnell, 105. 
 Palmer v. Goodwin, 517. 
 
 v. Hawes, 89. 
 
 v. Myers, 564. 
 
 v. Whitmore, 77. 
 Palmour v. Johnson, 424. 
 Pancoast v. Gowen, 70. 
 
 v. Spovvers, 554. 
 Pardue v. Givens, 640. 
 Parish v. Lewis, 172. 
 
 v. Murphree, 189, 191. 
 Park v. Battey, 380. 
 Parker v. Browning, 236. 
 
 v. Conner, 666, 673, 675, 676, 6S1, 
 683, 684, 686, 687, 691, 692, 
 697. 
 
 r. Flagg, 224, 291. 
 
 v. Phetteplace, 135, 503. 
 
 v. Roberts, 354. 
 Parkhurst v. McGraw, 7, 294, 302, 504. 
 Parkinson v. Trousdale, 338. 
 Parkman v. Welch, 196, 198, 303, 306. 
 Parks v. Parks, 608. 
 Parmenter v. Fitzpatrick, 450. 
 Parrish v. Danford, 23. 
 Parshall v. Eggert, 632. 
 Parsons v. Bowne, 297. 
 
 v. Dickinson. 446. 
 
 v. Spencer, 654. 
 Partee v. Mathews, 100, 108, 109, 176. 
 Partelo v. Harris, 357. 
 Parton v. Hervey, 570, 572. 
 Partridge i\ Cavender, 658, 660. 
 
 v. Gopp, 40, 80, 107, 380. 
 
 v. Stokes, 199, 366. 
 Parvin v. Capewell, 539. 
 Paschal v. Acklin, 738. 
 Pashby v. Mandigo, 223. 
 Pass v. Lynch, 213, 214. 
 Passavant v. Bowdoin, 233. 
 
 ?'. Cantor, 307, 604. 
 
 v. Sickle, 307. 
 Patchen v. Rofkar, 145, 149, 151, 152, 
 
 169. 
 Patrick v. Grant, 599. 
 
 v. Riggs, 406, 618. 
 Patten v. Casey, 355, 437. 
 
 v. Smith, 92. 
 Patterson v. Bodenhamer, 409. 
 
 v. Brown, 709. 
 
 v. Lynde, 172, 253. 
 
 v. McKinney, 190, 326, 437. 
 Pattison v. Letton, 419, 423. 
 D 
 
 Patton 7\ Conn, ^23. 
 
 v. Royal B. I'. Co., 561. 
 
 :■. Taylor, 274. 
 Paul :■. Crooker, 480, 4- 1 . 
 Paulk 7\ Cooke, 209. 
 Paulling v. Sturgus, 1 
 Paulsen v. Van Steenbergh, 142. 
 Pawley ■■■. Vogel, 21 16. 
 Paxton ,-'. Boyce, 1 1 . 
 
 . . Smith, 452, 620. 
 Payne v. Becker, (><>, 117. 
 
 v. Drewe, [36. 
 
 v. Eden, 712. 
 
 v. Graham, 132. 
 
 v. Hook, 239. 
 
 .-■. Miller, 542. 
 
 v. Sheldon, 144, 167, 176, 271. 
 
 7\ Stanton, 201, 208. 
 
 v. W 7 ilson, 88. 
 Payson v. Hadduck, 264. 
 Peabody?'. Knapp, 42S, 481. 
 Peake ?■. Stout, 371. 
 Pearce v. Creswiek, 113. 
 Pearsall 7-. Smith, 2S3, 507. 
 Pearson 7\ Carter, 453. 
 
 v. Howe, 685. 
 Pease v. Egan, 348, 349. 
 
 v. Shirlock, 3S1. 
 Peaslee v. Barney, 223. 
 Peay v. Morrison's Ex'rs, 169. 
 Peck v. Burr, 570, 572. 
 
 v. Crouse, 36S, 557. 
 
 7'. Hibbard, 517. 
 Peebles v. Horton, 403, 406, 432. 
 Peeler v. Peeler, 528, 529. 
 Peet v. Morgan, 132. 
 Peirce v. Partridge, 409. 
 Peiser v. Peticolas, 20, 368, 620. 
 Pelham 7'. Aldrich, 182. 
 Pence v. Croan,47, 18S, 190. 
 
 7'. Makepeace, 57. 
 Pendleton r\ Hughes, 183, 184, 244. 
 
 7>. Perkins, 58, 67, 14", 160. 709. 
 Peninsular Stove Co. v. Roark, 92. 
 Penn v. Lord Baltimore, 738. 
 
 v. Whitehead. 94. 
 Penn's Ex'r v. Penn, 558. 
 Pennell v. Deffell, 83. 
 Pennington 7\ Clifton, 108. 
 
 v. Seal, 46, 51, 1S2, 223. 
 Pennock v. Freeman, 514. 
 Penrod 7\ Morrison, 120. 
 Penzel Grocer Co. v. Williams, 610. 
 People v. Albany & \'t. R. R. Co., 260. 
 
 v. Baker, 370. 
 
 ;■'. Bristol. 626. 
 
 v. Chalmers, 550. 
 
 {ex rrl. Hoyt) 7'. Commrs. of 
 Taxes, 123. 
 
 v. Cook, 352. 
 
 v. Crennan, 46. 
 
 v. Dyle, 432. 
 
 v. Kelly, 339. 
 
 v. Mead, 115.
 
 1 
 
 Rtferenet*\ TABLE OF CASES. [are to pages. 
 
 People v. Remington, 
 
 . I ioga Common Fleas, 553. 
 t-. Utica Ins. Co., 46. 
 {ex re/. Cauffman) v. Van Buren, 
 102. 103, 1 10. 143, 144. 159, 
 
 r < 1. "■-. I73i 175. 333- 
 
 v. Woodruff, 46. 
 People's Sav. Hank v. Bates, 140, 167, 
 
 626, 703. 
 Pepper v. Carter, 200, 208. 
 Percy v. Cockrill 
 Perkins v. Center, 277. 
 
 r. Dickinson, 660. 
 
 :. Hays, 656. 
 
 ?■. Hutchinson, 576. 
 
 V. Kendall, 150. 
 
 V. Perkins, 437, 540. 
 
 7'. Sanders, 253. 
 Perry v. Corby, 594. 
 
 7'. Cross, 640. 
 
 7'. Ensley, 330. 
 
 v. Hardison, 407. 
 
 -■. Meddow croft, 2g. 
 Personette v. Cronkhite, 355, 368. 
 Peters v. Bain. I<), 23, 44, 47, 63, 268, 
 34S. 558, 562. 
 
 7'. Goodrich, 674. 
 
 v. Light, 62. 
 Peters-Miller Shoe Co. v. Casebeer, 490. 
 Peterson v. Brown, 717, 734. 
 
 v. Schroeder, 502. 
 Petree v. Brotherton, 1S2, 193, 279. 
 
 Pettee v. Dustin. 634. 
 Pettibone v. Stevens, 29. 
 Pettit 7'. Parsons, 558. 
 Petty v. Petty, 134, 135, 543. 
 Peyton 7'. Lamar, 100. 
 
 7 . Rose, 105. 
 Pfohl 7'. Simpson, 220. 
 Phalen v. Clark, 284. 
 Pilaris v. Leachman, 264. 
 Phelan v. Boylan, 247. 
 
 7'. Kelly, 469. 
 Phelps v. Borland, 517. 
 
 v. Curts, 24, 229. 
 
 v. I ■ ister, i"". 101. 
 
 V. McDonald, 229, 230, 730. 
 
 v. Piatt, 156, 225. 
 
 v. Smith, 7, 377. 
 Phenix Ins. Co. v. Fielder, 90, 717. 
 Phenix Nat. Bank v. A. P.. < leveland 
 
 Co.. 267. 
 Phettiplace v. Sayles, 190, 4O7 . 
 Phifer v. Erwin, 370. 
 Philbrook v. Eaton, 446. 
 Phillips v. Frye, 524. 
 
 v. Kesterson, 426. 
 
 ?■. Mullings, 77. 
 ;i 1. 
 
 v. Reitz, 452. 
 
 .- . Wooster, 184, 191, 205, 208, 
 213, 733. 
 
 Phinizy v. (lark, 402, 424. 
 
 Phipps 7'. Sedgwii k, -4, 326, 537, 545. 
 
 Phceni.x Bank v. Stafford, 207. 
 Phoenix Ins. Co., Ex parte \ 740. 
 Pickens v. Dorris, 660. 
 Picket 7'. Garrison, 1S3. ♦ 
 Pickett v. Pipkin, 272, 274, 409. 
 Pickstock v. Lyster, 363, 600. 
 Picquet v. Swan, 250. 
 Pidcock v. Voorhies, 180. 
 Piddock v. Brown, 479. 
 Pier v. Duff, 490. 
 Pierce v. Brew, 396. 
 
 v. Hill, 62. 
 
 v. Hoffman, 501. 
 
 t'. Hower, 271. 
 
 v. Kelly, 45S. 
 
 v. Milwaukee Constr. Co., 68, 
 218, 241. 
 
 7'. Wagner, 620. 
 Pierce Steam Heating Co. v. Ransom, 
 
 605 713. 
 Piercy 7'. Fynney, 390. 
 
 7'. Roberts, 64. 
 Pierson :■. Manning, 554. 
 
 v. Slifer, 357. 
 Pierstoff v. Jorges, 147. 
 Pike t. Bacon, 27, 600, 601. 
 
 7'. MiU-s, 31, 88. 
 Pilling 7'. Armitage, 304. 
 
 7'. Otis, 26, 403, 430. 
 Pillsbury v. Kingon, 231. 
 Pinckard v. Woods, 6S0. 
 Pinckston v. Brown, 726, 729. 
 Pine v. Rikert, 607. 
 Piper 7'. Hoard, 384. 
 
 v. Johnston, 93. 
 Pitkin v. Mott, 533. 
 Pitney 7\ Leonard, 674. 
 Pitts v. Wilder, 733. 
 Pittsburg Carbon Co. v. McMillin, 
 
 234, 237, 238. 
 Pittsriekl Nat. Bank 7\ Tailer, 271. 
 Place v. Hayward, 725, 729, 730. 
 
 7'. Langworthy, 619. 
 
 7. Minster, 49(1. 
 Planck v. Schermerhorn, 556, 610. 
 Planters' Bank -<. Willea Mills, 26. 
 Planters' & M. Bank 7'. Borland, 374. 
 
 V. Walker, 39. III. 
 Piatt 7'. Hunter, 609. 
 
 7'. Jones, 69, 70. 
 
 7. Lott, 608. 
 
 7 . Matthews, 168. 
 
 v. Mead, 156, 166, 229, 276, 278. 
 
 v. Preston, 291. 
 
 7'. Routh, 77. 
 Plimpton v. Goodell, 194, 419. 
 Plumb v. Fluitt, 672. 
 Plunkett v. Plunkett. 363, 419. 
 Poillon 7'. Lawrence, 518. 
 Pollak 7'. Searcy, 478. 
 P( illo< k v. Jones, 379. 
 Pomeroy v. Bailey, 188, 395, 437, 501, 
 502. 
 
 v. Pomeroy, 543.
 
 References] TABLE OF CASKS. [are to pages. 
 
 Pond v. Kimball, 93. 
 Ponsford v. Hartley, 220, 264. 
 Poole v. Mitchell, 470. 
 Poore v. Clark, 250. 
 Pope v. Allen, 442. 
 
 v. Cole, 115. 
 
 v. Solomons, 168. 
 
 v. Wilson, 19, 197. 
 Pope's Exrs. v. Elliott, 650, 657, 660. 
 Pormann v. Frede, 476. 
 Porter v. Goble, 534. 
 
 v. Green, 671. 
 
 v. James, 558. 
 
 v. Lazear, 545. 
 
 v. Lee, 660. 
 
 v. Pico, 315. 
 
 v. Pittsburg Bessemer Steel Co., 
 205. 
 
 v. Williams, 116, 234, 236, 237. 
 Portland Bldg. Assoc, v. Creamer, 334. 
 Post v. Bsrwind-White C. M. Co., 462. 
 
 v. Dart, 247. 
 
 v. Stiger, 51, 183, 244, 327, 527. 
 Posten v. Posten, 437. 
 Postlewait v. Howes, 167, 264. 
 Potter v. Adams, 96. 
 
 v. Couch, 65, 639, 640, 641, 643. 
 
 v. Gracie, 32, 347, 385, 395. 
 
 v. Holland, 75. 
 
 v. MrDowell, 17, 19, 278, 353, 
 355, 437. 488. 
 
 v. Payne, 368, 460. 
 
 r. Phillips, 255. 
 Potts z'. Blackwell, 102. 
 
 v. Hart, 619, 623. 
 Powell v. Howell, 55, 67, 142. 
 
 v. Ivey, 701, 719. 
 
 v. Spaulding, 216. 
 
 v. Waldron, 70, 71. 
 Power v. Alston, 24. 
 Powers v. Graydon, 184, 214, 242. 
 Powles v. Dilley, 304. 
 Prather v. Parker, 454. 
 Pratt v. Burr, 93. 
 
 v. Chase, 517. 
 
 v. Curtis, 190. 
 
 v. Pratt, 8, 10, 502. 
 Pray -'. Hegeman, 85. 
 Pregnall v. Miller, 452. 
 Preiss v. Cohen, 333. 
 Premo v. Hewitt, 88. 
 Prentice v. Janssen, 219. 
 Prentiss v. Bowden, 142, 147, 155, 225. 
 Prentiss Tool & S. Co. v . Schirmer, 450, 
 
 460, 630. 
 Presas v. Lanata, 132. 
 Prescott v. Hayes, 424. 
 Prestidge v. Cooper, 366, 672. 
 Preston v. Crofut, 699. 
 
 v. Smith, 281. 
 
 v. South wick, 450, 459. 
 
 v. Turner, 357. 
 Preusser v. Henshaw, 704. 
 Prevost v. Gratz, 282. 
 
 Prewit t. Wilson, 199, 359, 374, 3S2, 
 
 383, 384, 53o, 593. 690, 693. 
 Price ?'. Haynes, 574, ''"7. 
 
 v. Mazange, ()_•'. 
 
 v. Pitzer, 35, 453. 
 
 v. Sanders, 271). 
 Prickett v. Prickett, 392. 
 Pride :■. Andrew, 732. 
 Prime v. Brandon Mfg. Co., 75. 
 
 7'. Koehler, 81. 
 Primrose v. Browning, 531. 
 Prince's M. P. Co. v. Prince Mfg. Co., 
 
 72. 
 Pringle v. Phillips, 674, 687. 
 
 v. Pringle, 228. 
 Pritchard v. Hailey, 640. 
 
 v. Norton, 123. 
 Probst v. W'elden, 565, 609. 
 Produce Bank v. Morton, 150, 433, 555. 
 Prosser v. Edmonds, 247, 736. 
 
 v. Henderson, 415. 
 Prout v. Vaughn, 89. 
 Prouty v. Prouty, 244. 
 Pryor v, Downey, 573. 
 Public Works r. Columbia College, 
 
 140, 142, 296. 
 Pulliam v. Newberry, 52. 
 
 v. Taylor, 176. 
 Pullis v. Robinson, 210. 
 Pulsifer v. Waterman, 55. 
 Pulver v. Harris, 553. 
 Purkitt v. Polack, 259, 426, 438. 
 Pusey v Gardner, 7, 275, 434, 478, 504, 
 
 512, 720. 
 Putnam v. Bicknell, 529. 
 
 v.. Hubbell, 557. 
 
 v. Osgood, 443, 635. 
 
 v. Reynolds, 419. 
 Putney v. Fletcher, 225. 
 
 v. Whitmire, 740. 
 Pyeatt v. Powell, 618. 
 
 Quackenbos 7'. Sayer, 505. 
 Quarles v. Kerr, 635. 
 Queen (The). See Reg. 
 Quimby v. Dill 211. 
 Ouinby v. Strauss, 120, 325. 
 Quincy v. Hall, 242. 
 Quiriaque v. Dennis, 470. 
 Quirk v. Thomas, 726. 
 
 Radley v. Riker, 538. 
 Railroad Co. 7. Howard, 240. 
 
 v. Soutter, 349. 
 
 7'. Trimble, 73. 
 Raleigh v. Griffith, 571. 
 Randall v. Bufnngton, 91. 
 
 v. Carman, 619. 622. 
 
 v. Howard, 724. 
 
 7. Vroom, 35. 
 Randegger v. Ehrhardt, 489, 490. 
 Randolph v. Daly, 257. 27J. 290. 
 Randolph's Exr. 7\ Quidnick Co., 509. 
 Ranken v. Patton, 730.
 
 TABLE OF CASES. [are to pages. 
 
 Ranlett v. Blodgett. 
 
 ee ■. Stewart, 185, 585, 606. 
 Ratdifi v, Trimble, 11. 415. 
 Rathbun v. Plainer, 559. 
 Raventas 1 . < rreen, 471. 
 Ravisies 1 . Alston, ; 
 Rawley v. Brown, 442, 469. 
 Raws* m v. Fi >x, 316. 
 Rawson Mfg. Co. v. Richards, 44'). 
 Kay v. Raymond, 454. 
 
 v. Roe ex dun. Brown, 416. 
 
 v. Tea bout, 301. 
 Raymond, Matter of, 553. 
 
 v. M( irrisi in, 9. 
 
 v. Richmond, 311, 561. 
 Ravnor v. Mintzer, 250. 
 Rea, Matter of, 1S2. 
 
 v. Missouri. 13, 357, 372, 498, 499. 
 Read v. Mosby, 58, 64. 
 
 V. Patterson. 297. 
 
 v. Worthington, 24, 606, 616. 
 Reade v. Livingston, 1S6, 187, 192. 104, 
 
 197, 205, 209. 541. 
 Reber v. Gundy, 694. 
 Receiver of State Bank v. First Nat. 
 
 Bank, 551. 
 Redfield :■. Buck, 410, 490. 
 Redfield & Rice Mfg. Co. v. Dvsart, 
 
 416. 
 Redhead v. Pratt, 6S8. 
 Redpatb V. Lawrence, 377. 
 Red River Valley Bank v. Freeman, 
 
 232, 574- 
 Reed v. Bott, 273. 
 
 ?'. Emery, 592. 
 
 v. Gannon, '^74, 675, 686. 
 
 v. Mc Inty re, 548, 599, 704. 
 
 v. Minor, 462. 
 
 v. Noxon, 15. 
 
 v. Pelletier, 609. 
 
 v. Reed, 440. 
 
 t. Stryker, 104,215,290. 
 
 v. Wheaton, 171 
 
 7 . Woodman, 211. 423. 
 Reeder v. Speake, 155. 
 Reehling 7'. Byers, 434. 
 
 v. Livingston, 182,536. 
 Reese v. Reese, 526. 
 
 7 . Shell, 526, 527. 
 I s v. Ayers, 102. 
 
 7. Dougherty, 12. 
 
 7. Peterman, 574. 
 
 7'. Skipper. 5' 10. 
 Reg. 7'. Smith. 309. 
 
 i v. McClv 
 Rei( hart v. ' -i-i >•■ »r, 7 1 7. 
 
 V. Lloyd, 482. 
 
 Reifsnyder r . II unter, 640. 
 R'-i i^<-r 7'. Davi 
 
 II'. nes, 487. 
 Reilly ~-. P.arr. -jo. 410. 
 
 ngton . Linthicum, 133. 
 Remington Paper Co. 7. o'Dougherty, 
 247- 
 
 Renfrew :■. McDonald, 732. 
 Renney v. Williams, 435. 
 Rennie v. Bean, 554, 5 )2. 
 Renninger v. Spatz, 446, 459. 
 Renton v. Kelly, 581. 
 Retzer v. Wood, 515. 
 Reubens v. Joel, 140. 
 Rex v. Duchess of Kingston, 29. 
 
 v. Earl of Nottingham, 634. 
 Reyburn v. Mitchell. 167, 389. 
 Reynell v. Sprye, 28. 
 Reynes v. Dumont, 179. 
 Reynolds, In re, 182. 
 
 v. Crook, 42S. 
 
 v. Ellis, 547. 
 
 7. Gawthrop, 11. 13, 15, 16, 395, 
 405, 418, 497. 
 
 v. Johnson, 388, 390. 
 
 r. Park, 267. 
 
 7'. Robinson, 392. 
 
 v. Welch, 140. 
 Rhawn v. Pearce, 516. 
 Rhead 7'. Hounson, 109, 274. 
 Rheinstein v. Bixby, 332, 335. 
 Rhem v. Tull, 224. 
 Rhine v. Ellen, 396. 
 Rhoads v. Blatt, 415. 
 Rhodes v. Wood, 530. 
 Ribon v. Railroad Cos., 249. 
 Ricard v. Sanderson, 81. 
 Rice v. Cunningham, 4S0. 
 
 v. Morner, 406. 
 
 v. Perry, 278, 352. 
 
 v. Savery, Si. 
 Rich v. Braxton, 136. 
 
 v. Levy, 100. 
 Richards v. Kountze, 12. 
 
 ;•. La Tourette, 520. 
 
 7'. Leveille, 704. 
 
 v. Levin, 576. 
 
 v. Pierce, 288. 
 
 v. Vaccaro, 477. 
 Richardson 7'. Green, 237. 
 
 v. Marqueze, 89, 574, 704. 
 
 v. Mounce, 513. 
 
 v. Rardin, 454. 
 
 v. Rhodus, 187. 
 
 v. Root, 224. 
 
 v. Smallwood, 209. 
 
 v. Stringfellow, 370, 458, 574, 610. 
 
 v. Thurber, 548, 602, 613, 710. 
 
 v. Trimble, 147. 
 
 7'. Wyman, 545. 
 Riches v. Evans, 365. 
 Richmond 7\ Irons, 292. 
 Richmond Nervine Co. v. Richmond, 
 
 72. 
 Richolson v. Freeman, 494, 6SS, 6S9. 
 Richtmeyer v. Remsen, 552. 
 Rickards v. Attorney-General, 37. 
 Rickerson R. M. Co. 7\ Farrell, F. & 
 
 M. Co.. 334. 
 Riddell v. Munro, 372. 499, 667. 
 Riddle v. Lewis, 702.
 
 References'] TABLE OF CASKS. [art 
 
 liii 
 
 Riddle v, Mandcville, 264. 
 Rider v. Ham, 665. 
 
 v. Hunt, 7, 347. 
 
 v. Kidder, 67, 182, 223. 
 
 v. Mason, 86. 
 Ridge v. Greenvvell, 436. 502. 
 Ridgely v. Bond, 114, 280. 
 Ridgway v. English, 392. 
 Ridout v. Burton, 450. 
 Rife v. Geyer, 65, 657, 659. 
 Riggan v. Wolf, 347. 354- 
 Riggins v. Brown, 4S3. 
 Riggs v. Buckley, 307. 
 
 v. Murray, 33, 621, 634, 702. 
 
 v. Palmer, 45, 46. 
 Riley v. Carter, 563, 568. 
 
 v. Mayor, etc., of N. Y., 371. 
 
 v. Vaughan, 533, 534. 
 Rinchey v. Stryker, no, 143, 158, 159, 
 
 241, 262. 
 Rindskopf v. Myers, 371. 
 Rindskoph v. Kuder, 666. 
 Rinehart v. Long, 289. 
 Ringgold v. Ringgold, 309. 
 
 v. Waggoner, 426. 
 Ringold v. Suiter, 322. 
 Riper v. Poppenhausen, 278, 481. 
 Rippon v. Norton, 657. 
 Ritchie v. McMullen, 154. 
 Ritterband v. Baggett, 69. 
 Roach v. Bennett, 528. 
 
 v. Brannon, 388. 
 Robb v. Brewer, 88. 
 Robbins v. Armstrong, 538. 
 
 v. Butcher, 5S3. 
 
 v. Oldham, 454. 
 
 v. Parker, 635. 
 
 v. Sand Creek Turnp. Co., 216. 
 Roberge v. Winne, 547. 
 Robert v. Hodges, 138, 163. 
 Roberts v. Albany & W. S. R. R. Co., 
 130, 709. 
 
 v. Anderson, 4S, 338, 699, 700. 
 
 v. Buckley, 7, 12, 46, 477, 567, 
 570, 606, 613. 
 
 v. Gibson, 294. 
 
 v. Guernsey, 12. 
 
 v. Hawn, 450, 454. 
 
 v. Medbery490. 
 
 v. Shepard, 427. 
 
 v. Stevens, 644, 655, 660. 
 
 v. Tobias, 602. 
 
 v. Vietor, 19, 23, 347, 355, 551, 
 566. 
 Robertson v. Johnston, 660. 
 
 v. Sayre, 107, 164, 242, 720, 723. 
 
 v. Western, etc., Ins. Co., 661. 
 Robinson v. Bates, 545. 
 
 v. Clark, 526. 
 
 v. Consolidated R. E. & F. I. 
 Co., 391. 
 
 v. Dryden, 7. 
 
 v. Elliott. 27, 471, 619, 620, 625, 
 626, 633. 
 
 Robinson v. Frankel, 4-'^, 435, 436. 
 
 v. Holt, 52, 323. 
 
 v. Huffman, 60. 
 
 v. Stevens, 523, 525. 
 
 v. Stewart, 61, 62, 115, 141,, 201;, 
 306, 350, 534, 7.0. 
 
 v. Wallace, 539. 
 
 v. Williams, 391. 
 Robinson Motion Co. v. Foot, 705. 
 Rocheblave v. Potter, 454. 
 Rochford v. Hackman, 65, 047, 657. 
 Rockford Boot& S. Mfg. Co. v. Mastin, 
 
 706. 
 Rock Island Nat. Bank v. Powers, 621. 
 Rockland County v. Summerville, 434, 
 
 706, 707. 
 Rockwell v. McGovern, 609. 
 Rockv Mountain Nat. Bank t. Bliss, 
 
 151, 152, 153- 
 Rodgers v. Dibrell, 217. 
 Rodman v. Harvey, 331. 
 
 :'. Henry, 116, 235. 
 Roe v, Hume, 3S9, 562, 563, 609. 
 
 v. Meding, 445,451. 
 
 v. Mitton, 374. 
 
 v. Moore, 359. 
 Roeber v . Bowe, 674. 
 Roffey v. Bent, 647. 
 Rogers v. Albany & W. S. R. R. Co., 
 129. 
 
 v. Brent, 133. 
 
 v. Brown, 515. 
 
 v. Decker, 269. 
 
 v. Gosnell, 81. 
 
 v. Hall, 497. 
 
 v. Jones, 58, 67, 672. 
 
 v. Ludlow, 77. 
 
 v. Rogers, 146, 267. 
 
 v. Verlander, 191, 199, 394. 
 Rohrbough v. Johnson, 454. 
 Rollins v. Mooers, 667. 
 Romaine v. Chauncey, 87. 
 Roman v. Mali, 720. 
 Romans v. Maddux, 523. 
 Rome Exchange Bank v. Eames, 637. 
 Romine v. Romine, 330. 
 Rood v. Welch, 232. 
 Rooker v. Rooker, 374. 
 Root v. Reynolds 375. 
 Roper v. McCook, 172. 
 Rose ?\ Brown, 60, 198, 366. 
 
 v. Colter, 190, 393, 451, 519. 
 
 v. Hatch, 87. 
 
 v. Renton, 601. 
 
 v. Sharpless, 93. 
 Roseboom v. Roseboom, 643. 
 Rosenberg v. Moore, 103, 333. 
 Rosenblatt v. Johnston, 262. 
 Rosenstein v. Coleman, 584. 
 Rosenthal v. Coates, 260, 521. 
 
 v. Walker, 2S4. 
 Rosher, /// re, 640. 
 Ross v. Bridge, 339. 
 
 i'. Caywood, 673.
 
 liv 
 
 References'] TABLE OF CASES. [are to pages. 
 
 Ross :•. Crutsinger, 418. 
 ggan, 424. 
 
 r . 1 la nil I 
 
 v. McLung, 135. 
 
 , . Wcllman. 476, 501. 
 
 v. Wood, 147. 
 Rosseau . Bleau, 225. 
 Rothchild 1 . Rowe, 449. 
 Rothgerber v. Gough, 43 1 - 
 Rothschild v. Kohn, 708. 
 
 - , Mark, 520. 
 
 - ilomon, 574, 609, 610, 611. 
 Rouett v. Milner, 414. 
 Rourkc v. Bullens, 449. 
 Rouse v. Bowers, 557, 560. 
 
 Southard, 2S5. 
 Rowland v. Coleman, 274. 
 Roy v. Bishop of Norwich, 45. 
 Royal Baking Powder Co. <". Sherrell, 
 
 ' 72. 
 Royall v. McKenzie, 483. 
 Royce v. Gazan, 370, 477. 
 Rover Wheel Co. v Fielding, 176, 389, 
 562, 595. 
 
 v. Frost, 350. 
 Rozek v. Redzinski, 88. 
 Rozell v. Vansyckle, 733. 
 Rozier v. Williams, 454. 
 Rucker r. Abell. 341. 
 
 v. Moss, 481. 
 Ruckman v. Conover, 718. 
 Rudy r-. Austin, 209, 377. 
 Ruffing v. Tilton, 21S. 
 Ruffner v. Welton C. & S. Co., 347. 
 Rugan v. Sabin, 690. 
 Ruggles v. Brock. 237. 
 Ruhl v. Phillips, 357.-427, 557- 
 RutTK-rv v. McCulloch, 564 717. 
 Runals ?■. Harding, '331. 
 Rupe t. Alkire. 24, 354. 
 Ruse v. Bromberg, 216, 423. 
 Rush v. Barr, 514. 
 
 7'. Vought, 114. 
 Russell, Ex parte, 203. 
 
 7'. Clark, 107, 169, 250. 
 I Iyer, 109, 133. 
 
 7'. GrinneP, 656. 
 I ,asher, 267. 
 
 v. Lennon, 93. 
 
 7'. O'Brien, 4<>\. 
 
 ?■. Rutherford 
 
 7. Winne, 133, 347, 353, 408, 621, 
 623. 
 Rutherford v. Chapman, 532. 
 
 7'. Schattman, 495. 
 Ruyter v. Reid, 122. 
 Ryall 7'. Rolle, 37 40, 107. 
 Ryan v. I 
 
 -.-. S[>ii-ih, 271. 273. 
 
 7'. Staples 
 
 7. Webb 
 Ryder v. Hulse 
 
 7'. Si^'-ofi ■ 
 
 v. Wombwell, 499. 
 
 Ryhiner -<■. Ruegger, 547. 
 Ryland v. Callison, 133, 246. 
 Ryle 7. Falk, 126. 
 
 Sabin <". Columbia Fuel Co., 357, 481. 
 
 Sacry 7'. Lobree, 481. 
 
 Safford -■. Douglas, 708. 
 
 Sage v. Memphis, etc., R. R. Co., 167. 
 
 v. Mosher, 215, 216, 258. 
 St. George v. Wake, 544. 
 St. George's Church Soc. v. Branch, 
 
 39 1 - 
 St. John v. Benedict, 720. 
 
 v. Pierce, 219. 
 St. Louis & S. F. Ry. Co. v. Johnston, 
 
 273, 274. 
 Salisbury v. Morss, 260. 
 Salmon v. Bennett, 187, 437. 
 
 v. Smith, 304. 
 Salt Springs Nat. Bank v. Fancher, 
 
 322. 
 Sammons v. O'Neill, 676, 679. 
 Samuel v. Kittenger, 426. 
 
 v. Salter. 660. 
 Sanborn v. Kittredge. 113. 
 Sanders v. Clason, 82. 
 
 v. Logue, 183. 
 Sandman v. Seaman, 126, 415. 
 Sands v. Cod wise, 38, 229, 343, 431. 
 
 ?•. Hildreth, 301. 
 Sanford v. Lackland, 65. 
 
 7'. Sanford, 396. 
 Sanger v. Colbert, 426, 487. 
 
 v, Flow, 549. 
 
 v. Upton, 131. 
 Sangston v. Gaither, 20. 
 Sankey t. O'Maley, 336. 
 Saratoga County v. Deyoe, 163, 219. 
 Sargent r. Salmond, 40, 67, 106, 107. 
 Sarle v. Arnold, 399, 410, 450, 451, 497, 
 
 498. 
 Satterlee 7\ Matthewson, 574. 
 Sauer v. Behr, 420, 619. 
 Saunders v. Lee, 666. 
 
 v. Parrish, 498. 
 
 7'. Reilly, 389, 562. 
 
 v. Waggoner, 611. 
 Savage v. Dowd, 704. 
 
 v. Hazard, 667. 
 
 v. Knight, 47. 
 
 v. Murphy, 135, 193, 195, 208, 
 209, 360, 361, 534. 
 
 v. O'N'eil. 124, 524. 
 
 v. Smith, 520. 
 Savings Bank of N. H. v. Bates, 615. 
 Savoye v. Marsh, 517. 
 Sawin v. Guild, 74. 
 Sawyer v. Almand. 700. 
 
 7'. Bradshaw, 400. 
 
 v. Harrison, 474. 
 
 v. Hoag. 131, 237, 240 268. 
 
 v. Levy, 703, 7:5. 
 
 v. Noble, 219. 
 
 v. Thayer, 227.
 
 References'] TABLE OF CASKS. [aretofiage*. 
 
 lv 
 
 Sayles v. Best, 79. 
 Sayre v. Flournoy, 6S. 
 
 v. Fredericks, 35, 52, 306, 30S, 
 375, 4io. 
 
 v. Hewes, 408. 
 Scales v. Scott, 160. 
 Schafer v. Reilly, 121. 
 Schaferman v. O'Brien, 259, 416. 
 Schaible v. Ardner, 19, 700. 
 Schatz v. Kirker, 414. 
 Scheble v. Jordan, 490. 
 ScheitHn v. Stone, 301, 433. 
 Schermerhorn v. De Chambrun, 724. 
 
 v. Merrill, 62. 
 
 v. Negus, 640. 
 Schiele v. Healy, 609. 
 Schleisinger 7>. Sherman, no. 
 Schloss v. Wallach, 115, 125, 555. 
 Schmidlapp v. Currie, 102, 388. 
 Schmidt v. Niemeyer, 476. 
 
 v. Opie, 374', 375. 
 Schneider v. U. S. Life, etc., Co., 56. 
 Schnicker v. People, 487. 
 Schoeffler v. Schwarting, 338. 
 Scholey v. Worcester, 184, 213. 
 Schram v. Taylor, 357. 
 Schrenkeisen v. Miller, 320. 
 Schreyer v. Scott, 1S0, 181, 188, 193, 
 
 196, 198, 200, 203, 204, 205, 523. 
 Schribar v. Piatt, 92. 
 Schroder v. Tompkins, 548, 551, 614, 
 
 615. 
 Schroeder v. Bobbitt, 408, 703. 
 
 v. Walsh, 357. 
 
 v. Young, 8. 
 Schroer v. Pettibone, 145. 
 Schumacher v. Bell, 432, 497. 
 Schuster v. Stout, 183. 
 Schwartz v. Soutter, 563. 
 Schwed v. Smith, 740, 741. 
 SchwierT'. N. Y. Cent. & H. R. R. R. 
 
 Co., 432. 
 Schwinger v. Hickok, 116. 
 Scofield v. Spaulding, 492. 
 Scoggin v. Schloath, 395, 396 
 Scott v. Alford, 587, 620. 
 
 v. Davis, 363, 379. 
 
 v. Depevster, 279. 
 
 v. Gill, 81. 
 
 v. Hartman, 1S3, 244, 245. 
 
 v. Indianapolis Wagon Works, 
 51, 100. 
 
 v. McFarland, 271. 
 
 v. McMillen, 168, 169. 
 
 v. Magloughlin, 222, 521 
 
 v. Mills, 554. 
 
 v. Morgan, 163. 
 
 v. Neely, 7, 137, 139. 
 
 v. Nevius, 86, 661. 
 
 v. Wallace, 172. 
 
 v. Winship, 415, 459. 
 Scottish Amer. Mortgage Co. v. Fol- 
 
 lansbee, 219. 
 Scouton v. Bender, 298. 
 
 Scoville t\ Canfield, . 
 Scribner v. Fisher, 5 1 7. 
 Scrivenor v. Scrivenoi . 419. 
 
 Sim Ins. Co. v. Stebbins, 336. 
 Seale v. Vaiden, 
 Seaman v. Stoughton, 229. 
 Sens ,-'. Choate, 66 ». 
 
 7'. I lanks i 1 . 
 
 7'. Putnam, (140. 
 
 ,-•. Shafer, 431. 
 Seasongood r. Wan- 6 
 Seaver v. Bigelows, 2i(>, -\^. 
 Seavey 7 1 . Walker, 45. 
 Seavy r\ I )earborn, 676, 686. 
 Sebrauth v. Dry Dock Saw Bank, 116. 
 Second Nat. Bank t. Brady, 724. 
 
 7-. Merrill, 208, 357, 421, 531. 
 
 v. Schrauck, 550. 
 
 v. Yeatman, 413, 431, 432. 
 Secor 7\ Lord, 81. 
 Sedgwick ?■. Stanton, 31. 
 
 v. Tucker, 370. 
 Seeleman v. Hoagland, 277, 301, \- g 
 Seger'sSons v. Thomas Bros., 407, 431, 
 
 703. 
 Seitz v. Mitchell, 302, 303, 435, 526, 527, 
 
 539- 
 Seivers v. Dickover, 343. 
 Selleck v. Phelps, 349. 
 Selover v. Coe, 264. 
 Semmens v. Walters, 7, 539. 
 Semmes v. Hartford Ins. Co., 166. 
 Senter v. Mitchell, 116. 
 Sere v. Pitot, 231. 
 Severs v. Dodson, 181, 1S2. 
 Seward v. Jackson, 183, 186, 1S9, 192, 
 
 205, 376. 
 Sexey v. Adkinson, 140. 
 Sexton v. Anderson, 389. 
 
 v. Wheaton, 60, 96, 100, 106, 1S9, 
 194, 204, 205, 209, 221, 223, 
 412, 533- 
 Seymour v. McKinstey, 666. 
 v. O'Keefe, 453, 4<">. 
 v. Wilson, 32, 276, 370, 371, /,'j;, 
 637, 665, 666. 
 Shackelford ;:'. Shackelford, 102. 
 Shackleford v. Collier, 229. 
 Shaeffer v. Fithian, 344. 
 Shafer ^. O'Brien, 290. 
 Shainwald v. Lewis, 58, 116, 296, 331. 
 Shand v. Hanley, 199, 220, 26S, 298, 
 
 314, 337. 342.' 34". 366. 
 Shankland's Appeal, 650, 657, 662. 
 Shanks v. Klein, 389. 
 Shannon -\ Commonwealth, 034. 
 Sharp v. Cosserat, 647. 
 V. Sharp, 297. 
 7'. Teese, 712. 
 Sharpe v. Davis, 717. 
 
 7'. Freeman, 225. 
 Shattuck 7\ Freeman, 
 Shauer v. Alterton, 435, 44 6 . 4 
 693.
 
 Ivi 
 
 Re/trtneJ\ TABLE OF CASES. [are to pages. 
 
 Shaul v. Harrington, 452. 
 Shaver 1 . Brainard, 251. 
 
 Shaw ;. Dwight, 14''. 155. 176, J77. 178, 
 -47. 476- 
 : . Levy, 453. 
 -■. Manchester, 146. 
 v. Millsaps, 255. 264, 717. 
 ipei . ' '74- 
 . 1 hompson, 449. 
 v. Wilshire, 449. 
 Shawano County Bank v. Koeppen, 88. 
 Shay :. Security Hank, 233. 
 
 Wheeler, 414. 
 Shea ,-. Knoxville ,V Ky. R. R. Co., 
 
 157- 
 Sheafe v. Sheafe, 100, 111, 15S, too. 
 Shealy v. Edwards, 403, 497, 703. 
 Shean v. Shay, 183, 244, 416. 
 Shearon v. Henderson, 434. 
 Slice v. Hale, 047. 
 Sheldon v. Weeks, S3. 
 
 n H. B. Co. v. EickemeyerH, B. 
 
 M. Co., 221. 
 Shelley - . Boothe, 704. 
 Shellington v. Howland, 166. 
 Shelton r. Church, 414. 
 Shepard 7\ Walker, 55. 
 Shepherd v. Trigg, 454. 
 
 ?'. Woodfolk, 340, 342. 
 Sheppard v. Thomas, 204, 212. 
 Sheppard's Estate, 506. 
 Sheppards v. Turpin, 583. 
 Sherman v. Barrett, 32. 
 
 v. Blodgetl, 4S3, 484. 
 v. Elder, 532, 552. 
 v. Hogland, 9, 190,278,403,413, 
 435. 495. 502. 
 Sherrill Roper Air Engine Co. v. Har 
 
 wood, 339. 
 Sherron v. Humphreys, 451. 
 Sherwin r. Gaghagen, 619, (>?(>. 
 Sherwood v. Su:t<>n, 2S6, 513. 
 Shields v. Barrow. 249. 
 Shine t-. Gough, ' ;- 1. 
 Shipman v. .Etna Ins. Co., 231. 
 
 , I amis s, 29, 386. 
 Shirley v. Long, 231. 
 
 7'. Teal. 
 Shirr.: , 406. 
 
 Shober v. Wheeler, 413, 435. 
 v !i-»-inaker ?'. Cake 28. 
 
 . 278. 
 Shontz v. lirown, 181, 183, 222. 
 Short v. Tinsley, 340. 
 Shorten v. Woodrow, [64. 
 Short Staple(The), 12. 
 Shotwell, In r, . 
 Showman . . Lee, 347, 42?. 
 Shryock v. Waggoner, - . 
 Shufeldt -■. I oehm, too, toi, 131, 167. 
 Shultz -■. Hoagland, to, 435, 553, 558, 
 
 593, 6oq, 
 
 '.11. 
 Shumway r. Rutter, 449. 
 
 Shumway v. Shumway, 330. 
 
 Shurtleff v. Willard, 449, 635. 
 
 Shurts v. Howell, 155. 
 
 Shutts v. Fingar, 223. 
 
 Sibly ?'. Hood, 454. 
 
 Sibthorp v. Moxom, 80. 
 
 Sickle. Matter of, 115, 555. 
 
 Sickles v. Sharp, 47. 
 
 Sickman 7'. Wilhelm, 351, 368. 
 
 Sidensparker 7'. Sidensparker, 146, 476, 
 
 667. 
 Sides v. McCullough, 213. 
 
 7'. Scharff, 278. 
 Siedenbach v. Riley, 450. 
 Sigler 7'. Knox County Bank 102 
 Sillick v. Mason 86. 
 Silliman 7'. Haas, 491. 
 
 v. United States, 354. 
 Sillyman 7-. King. 529. 
 Silverman v. Lessor, 517. 
 Silvers v. Hedges, 12. 
 Silvis v. Oltmann, 474. 
 Simar v. Canaday, 134, 215, 543. 
 Simmons v. Ingram, 108, 264, 366. 
 
 v. Jenkins, 619. 
 Simms 7'. Morse, 9, 435, 503, 539. 
 Simon v. Ellison, 25;. 
 
 v. N'orton, 589. 
 Simon-Gregory Co. v. McMahan, 489. 
 
 v. Schooley, 673, 679. 
 Simpson v. Dall, 95. 
 
 v. Del Hoyo, 666. 
 
 v. Warren, 231. 
 Sims v. Gaines, 19, 51, 66, 424, 480. 
 
 v. Phillips, 92. 
 
 v. Thomas, 59, 77. 
 Simson v. Brown, Si. 
 Singer v. Goldenburg, 426. 
 
 v. Jacobs, 681, 688, 689. 
 
 v. Wheeler, 117, 374. 
 Singree v. Welch, 374. 
 Sipe v. Earman, 416, 559. 
 Sipley v. Wass, 666. 
 Skarf v. Soul'jy, 51. 
 Skeate v. Beale, 354. 
 Skeele v. Stanwood, 140. 
 Skellie v. James, 526. 
 Skipwith v. Cunningham, 416. 
 Skowhetran Bank 7'. Cutler, 36. 
 Slater v. Sherman, 51. 
 Slattery -.•. Schwannecke, 357. 
 Sledge 7'. Obenchain, 212. 
 Sleeper -■. Chapman, 401, 626. 
 Slingluff v. Smith, -<>i . 
 Sloan 7'. Birdsall, 21. 
 
 v. Huntington, 530. 
 Small 7'. Boudinot, 275. 
 
 7. Owings, 1 14. 
 
 V. Small, 418. 
 Smart -■. Bement, 669, 670. 
 Smeltzer v. I roslee, 66 ;. 
 Smets v. Williams, 55. 
 Smillie v. Quinn, 56, 88. 
 Smith v. Acker, 617.
 
 References] TABLE OF CASES. [are to pages. 
 
 lvii 
 
 Smith t. Allen, 88, 383. 
 v. Babcock, 296. 
 v. Barclay, 69. 
 v. Bellows, 569. 
 v. Blake, 118. 
 ?'. Bowen, S3. 
 v. Boyer, 425. 
 v. Bromley, 729. 
 v. Brown, 432. 
 v. Bryan, 740. 
 v. Buchanan, 518. 
 v. Champney, 471. 
 v. Clark, 640. 
 v. Collins, 279, 483. 
 v. Conkwright, 26, 634. 
 v. Craft, 221, 458, 592, 62S, 702, 
 
 703, 705, 713, 7M- 
 v. Crisman, 469. 
 v. Davis, 608. 
 v. Ely, 619, 623, 633. 
 v. Emerson, 93. 
 v. Felton, 520. 
 v. Garey, 76. 
 v. Greer, 197. 
 v. Grim, 255, 264. 
 v. Henkel, 11. 
 v. Henry, 690. 
 v. Howard, 575, 717. 
 v. Hubbs 732. 
 v. Hunter, 453. 
 v. Hurst, 634. 
 v. Johnson 567. 
 v. Kay, 275, 729. 
 v. Kearney, 58. 
 v. Kehr, 31. 
 v. Kelley, 336. 
 v. Longmire, 159, 175. 
 v. Lowell, 437, 4S0. 
 v. Meaghan, 243. 
 v. Milieu, 140. 
 v. Mitchell, 89, 553. 
 v. Moore, 65, 457. 
 v. Muirheid, 35, 153. 
 v. Munroe, 578, 613. 
 v. National Benefit Soc, 4S7, 488. 
 7'. New York L. I. Co., 227, 425. 
 v. Onion, 423, 424. 
 v. Quartz M:n. Co., 737. 
 v. Railroad Co., ror, 140, 172. 
 v. Reid, 18, 23, 109, no, 188, • 
 
 192, 314,315,435. 
 v. Riggs, 533. 
 v. Rumsey, 31, 92, 158. 
 v. Sanborn, 64. 
 v. Sands, 324. 
 v. Schulting, 2t8. 
 v. Schwed, 501, 706. 
 v. Sipperly, 389. 
 v. Skeary, 704. 
 v. Smith, 352, 389, 390, 517, 543- 
 
 563. 
 v. Spencer, 377. 
 v. Towers, 644, 654, 655, 658. 
 v. Vodges, 188, 204, 437. 
 
 Smith r'. Vreeland, 1S7. 
 
 v. Water Comm'rs of Norwich, 
 
 357- 
 7'. Weeks, n ; , 173. 
 v. Welch, 459. 
 V. White 433. 
 V. William 
 7'. Wise, 32I, 34O, 560, 56I. 
 
 7'. Wood, 96, 273, 275. 
 
 v. Veil, 437- 
 Smith's Appeal, 551, O14. 
 Snedecor v. Watkins, 516. 
 Snell v. Harrison, 431. 
 Snelling -•. Mclntyre, 350. 
 Snodgrass t. Andrews, 104, 1 56, 172, 
 215, 223. 
 
 v. Branch Bank of Decatur, 286, 
 
 513- 
 
 Snow v. Lang, 723. 
 
 7'. Paine, 370. 
 Snowdon v. Dales, (14, 657, 
 Snyder v. Braden, 354. 
 
 v. Christ, 206, 366. 
 
 v. Dangler, 278. 
 
 v. Free. 190, 351, 352, 392, 394, 
 488. 
 Societa Italiana v. Sulzer, 301. 
 Sockman v. Sockman, 111. 
 S iden v. Soden, 1S2, 416. 
 Sohier v. Johnson, 71. 
 Solinger 7.'. Earle, 712. 
 Solinsky v. Lincoln Sav. Bank, S4, 324. 
 Somerville v. Donaldson, 330. 
 Somes v. Skinner, 502. 
 Sommermeyer v. Schwartz, 203, 414, 
 
 537- 
 Sommerville v. Horton, 635. 
 Songer ?'. Partridge, 717. 
 Sorenson v. Sorenson, 208. 
 Souder's Appeal, 113, 121. 
 Soule v. Chase, 517. 
 Southall v. Farish, 273, 504. 
 Southard v. Benner, 57, 139, 14-'. [68, 
 
 225, 229, 231, 233, 553, I 
 South Branch Lumber Co. v. < >u, 571, 
 
 595, 596, 606. 612. 
 South Danvers Nat. Bank v. Stevens, 
 
 551- 
 
 South Sea Co. v. Wymondsell. =1 (, 
 Southwick 7'. First Nat. Bank, 27 
 Southworth v Adams, 136. 
 Spackman v. Evans, 17. 
 Spader 7A Davis, 58, 128, 14S 
 Sparhawk .-. Cloon, 65, 656. 
 
 v. Yerkes, 70, 71. 74. 
 Sparks v. Brown. 490, 619. 
 
 .-'. Dawson, 1 ; . 
 
 v. De La Guen 
 
 7'. Mack. 4S1, iii 
 Spaulding 7'. Blythe, 278, 361, 519. 
 
 v. Fisher, 164. 
 
 7'. Keyes, 55. 501, 525, 630. 
 
 v. Strang, =7", 704, 7 r 5- 
 
 Speiglemyer 7'. Crawford, 157, 223.
 
 lviii 
 
 TABLE OF CASES. {are to Pages. 
 
 Spelman v. Freedman, 139, 177. 221, 
 248,271,332,547,597 
 
 Spem . . well, 55''. 
 
 Smith, 424. 47^, 700. 
 Spencer :. Armstrong, 155. 
 . Ayrault, 3S7. 
 I lyler, 115. 
 v. Godwin, [87. 
 v. Jacks. hi, 601. 
 1 . Myers, 56. 
 
 5] enter, 544. 
 ■ . Ktheridge, 628. 
 Spicer v. Ayers, 155. 
 v. Hunter, 321. 
 : . Spicer, 10. 
 Spindle v. Shreve. 59, 65, S4, 85, 87, 
 
 136, 638, ( 50, 652, 653. 
 Spirett v. Willows, 61 1. 
 Splawn v. Martin. 357. 
 Spokane 0>. v. Clark, 83. 
 Spotts v. Commonwealth, 475. 
 Sprague v. Cochran, 251. 
 
 . 1 laines, 516. 
 Spraights v. Hawley, 444, 618. 
 Spring ?•. Short, 57, 231, 232. 553. 
 Spring Co. : . Knowlton, 731. 
 Springer v. Savage, 660. 
 Springfield Homestead Assoc, v. Roll, 
 
 70I, 717. 
 Stacy v. Deshaw, 55, 503. 
 
 :•. Thrasher, 154. 
 Stadelman v. Loehr, 564. 
 Stafford v. Merrill, 610. 
 Stall v. Fulton. 529. 
 Stambaugh's Estate, 662. 
 Stamper v. Hibbs, 709, 
 Stanbro v. Hopkins, 474. 
 Stanford v. Lockwood, 553. 
 Stanley v. Hum e 
 
 v. National Union Bank, 459, 
 
 462. 
 v. Robbins, 3S1. 
 
 Si hwalby. 377. 
 v. Stanton. 285. 
 v. Thornton. ' 
 Stanton z . < rreen, 308. . 
 v. Kirsi li 
 v. Shaw, 725. 
 v. Westover, 564. 
 Staples v. Bradley, 109, 133. 
 
 . Smith, 501. 
 Starin v. Kelly, 38, 358, 370, 478, 559, 
 
 Stark v. Grant, 450, 451. 
 
 v. Starr, 8. 
 Starke v. Little page, 72C, 734. 
 Starks v. Curd. 232. 
 Starr v. Peck, to, [2. 
 
 Starr, 397. 
 State v Bowen, 129, 141. 
 
 V. Burk< holder. 245. 
 Bust 1). 618, 619. 
 
 : . I ast( ■ I, 47"- 
 
 State v. Durant, 470. 
 
 v. Estel, 20. 
 
 v. Evans, 394. 
 
 {ex rel. Smith) v. Flynn, 462,403. 
 
 (ex rel.) Baumunk) v. Goetz, 454. 
 
 v. Hemingway, 397. 
 
 v. Hope, 347. 
 
 v. Keeler, 433, 55S. 
 
 v. King, 41.1 
 
 v. McBride, 58, 63. 
 
 v. Mason, 357, 405, 676, 685, 691. 
 
 (ex rel. Peirce) v. Merritt, 426, 
 431. 676. 
 
 v. Miller, 124. 
 
 (ex rel. Brown) v. Mitchell, 399, 
 45S. 
 
 v. Mueller, 26. 
 
 v. Phcenix Bank, 500. 
 
 v. Purcell, 691. 
 
 v. Roever, 624, 633. 
 
 (ex rel. Enderlin State Bank) v. 
 Rose, 550, 557. 
 
 v. Rosenfeld, 460. 
 
 v. Thomas, 102. 
 
 ?■. Williams, 518. 
 State Bank v. First Nat. Bank, 551. 
 
 v. Whittle, 393. 
 State Saw Bank v. Buck, 421. 
 Staton v. Pittman, 231. 
 Steadman v. Wilbur, 524, 525. 
 Stearns v. Gage, 360, 671;, 676, 678, 679, 
 683, 6S4, 686^ 692. 
 
 v. Harris, 73. 
 
 v. Page, 284, 285, 286, 513. 
 Stebbins v. Miller, 4S6. 
 Steel v. De May, 434. 
 
 v. Goodwin, 614. 
 Steele v. Benham, 4S7, 459, 632. 
 
 v. Ward, 357. 
 Steelwagon v. Jeffries, 463. 
 Steere v. Hoagland, 84, 154, 156, 166, 
 
 "'7. 325. 415. 
 Steib v. Whitehead, 660. 
 Stein v. Hermann, 322. 
 
 v. Munch, 632. 
 Stephens v. Adair, 717. 
 
 v. Cady, 71, 73, 74. 
 
 v. GifTord, 450, 453. 
 
 v. Meriden Britannia Co., 235. 
 
 v. Perrine, 234, 633. 
 
 v. Regenstein, 610. 
 
 v. Whitehead, 141, 288. 
 Stephenson v. Donahue, 538. 
 Stern Auction & C. Co. v. Mason, 414. 
 Sternbach v. Leopold, 420. 
 Sterry v. A r den, 383, 672. 
 Stetson v. Miller, 594. 
 Stevens v. Breen, 618. 
 
 v. Brennan, 345. 
 
 v. Carson, 521). 
 
 V. Dillman, 415, 431, 432, 486. 
 
 7\ Gladding, 74. 
 
 V, Hinckley, 423, 424. 
 
 v. Irwin, 457.
 
 References'] TABLE OF CASES. [are to pages. 
 
 lix 
 
 Stevens v. Merrill, 3. 
 
 v. Myers, 338. 
 
 v. Pierce, 428. 
 
 v. Robinson, 23, 190, 437. 
 
 v. Wiley, 736. 
 
 v. Works, 182. 
 Stevens Lumber Co. v. Kansas City P. 
 
 M. Co., 357. 
 Stevenson v. Stevenson, 51. 
 
 v. White, 94. 
 Steward v. Thomas, 468. 
 Stewart v. Beale, 165. 
 
 v. Dunham, 136, 740. 
 
 v. Emerson, 104. 
 
 v. English, 58, 67. 
 
 v. Fagan, 140. 
 
 v. Fenner, 488, 498. 
 
 v. Hopkins, 419. 
 
 v. Isidor, 298. 
 
 v. Johnson, 495. 
 
 v. McMartin, 68, 117. 
 
 v. Mills Co. Nat. Bank, 417. 
 
 v. Piatt, 230, 378, 617, 618, 717. 
 
 v. Rogers, 190. 
 
 v. Spenser, 577. 
 
 v. Stewart, 543, 544. 
 
 v. Thomas, 491. 
 
 v. Wilson, 416. 
 Stickney v. Stickney, 536. 
 Stileman v. Ashdown, 189, 204, 412. 
 Still v. Focke, 564. 
 
 v. Spear, 650, 662. 
 Stillings v. Turner, 720, 728. 
 Stillwell v. Stillwell, 25S, 735. 
 Stilwell v. Van Epps, 126. 
 Stimson v. White, 529. 
 
 v. Wrigley, 182, 448, 470, 633. 
 Stinson v. Hawkins, 363, 406. 
 
 v. Williams, 58, 67. 
 Stiles v. Champion, 595. 
 Stix v. Chaytor, 452. 
 Stock Growers' Bank v. Newton, 104, 
 
 247, 419, 421. 
 Stockwell v. Blarney, 491, 492. 
 
 v. Sillowav, 367. 
 Stoddard v. Butler, 37, 416. 
 Stokes v. Amerman, 56, 541. 
 
 v. Coffey, 57. 
 Stokoe v. Cowan, 51, 58. 
 Stone v. Anderson, 160. 
 
 v. Chisolm, 131. 
 
 v. Grubham, 412. 
 
 v. Locke, 45. 
 
 v. Myers, 183. 
 
 v. Peacock, 471. 
 
 v. Spencer, 363, 364. 
 
 v. Stone, 543. 
 
 v. Westcott, 144, 660. 
 Stoneburner v. Jeffreys, 581. 
 Storey v. Agnew, 365. 
 Storm v. Davenport, 231, 556. 
 
 v. United States, 515. 
 
 v. Waddell, 74, 115, 129, 708, 709. 
 Stout v. Phillipi Mfg. & M. Co., 702. 
 
 Stout r 1 . Stout, 259. 
 
 v. Watson, 594 
 Stovall v. Farmer^' & M . Bank, 342. 
 Stover 7a Herrington, 1.06,426. 
 Stow v. Chapin, 662. 
 Stowe v. Taft, 449, 
 Stowell v. Hastings, 640. 
 
 t. Hazelett, 489, 
 Strader v. Mullane, , 
 Stramann v. Scheeren, 523. 
 Strang v. Bradner, 518. 
 Stratford v. Ritson, 264. 
 Strathmore 7\ Bowes, 544. 
 Stratton v. Putrey, 424, 480. 
 Strauss v. Kranert, 13. 
 
 v. Parshall, 525. 
 Strike v. McDonald, 220. 
 Striker t. Mott, 609. 
 Stroff v. Swafford, 413. 
 Strong v. Clem, 1 17. 
 
 '■. Skinner, 62. 
 
 v. Strong, 51. 
 
 v. Taylor School Township, 217, 
 
 293- 
 Strouse v. Becker, 93. 
 Stuart v. McClelland, 533. 
 
 v. Smith, 409. 
 
 v. Stuart, 183. 
 Stucky v. Masonic Sav. Bank, 694. 
 Stumbaugh v. Anderson, 391. 
 Stump v. Rogers, 223. 
 Sturge^ v. Crowninshield, 517. 
 
 v. Vanderbilt, 140. 
 Sturm v. Chalfant, 15, 387. 
 Sturtevant v. Ballard, 29, 445. 
 Suau v. Caffe, 392. 
 Suffern v. Butler, 338. 
 Sugg v. Tillman, ii 1 
 Suiter v. Turner, 468. 
 Sukeforth v. Lord, 355. 
 Sullice v. Gradeni^o, 224. 
 Sullivan v. Iron & Silver Min. Co., 277. 
 
 v. Miller, 156, 560, 592. 
 
 v. Portland & K. R. R. Co., 512. 
 
 v. Smith, 564. 
 
 v. Sullivan, 442. 
 Summers v. Babb, 545. 
 Sumner v. Brady, 712. 
 
 v. Cook, 490. 
 
 v. Dalton, 449, 463. 
 
 v. Hicks, 135, 571, 585. 
 
 v. Newton, 661. 
 Supervisors of Saratoga Co. ~\ Deyoe, 
 
 163, 219, 288. 
 Susong -•. \\'illiams, 700. 
 Sutherland, /// r, ■, 69. 
 
 v. Bradner, 19, 355, 356 51 
 576, 6i 1. 
 Sutphen v. Fowler, 738. 
 Sutton v. Ballou, 45a, 465. 
 
 v. Hanford, 26. 
 Suydam v. Northwestern Ins. Co., 270. 
 Swaby's Appeal, 664. 
 Swaine v. Perine, 543,
 
 lx 
 
 References'] TABLE OF CASES. [are to pages. 
 
 Swan v. Morgan, 488, 490. 
 
 : . Ri ibinson, - 
 
 Smith, 15". 222, 341. 
 Swan Land & C. Co. v. Frank, 141, 172, 
 
 249, 252. 
 Sweeney r. Conley, 370. 
 Sweeny v. Grape Sugar Ref. Co.. 129. 
 Sweet v. Converse. 
 
 v. Dean. 477. 
 
 .- . Scherber, _ 
 
 v. Tinslai . 
 
 v. Wright, ?2. 4S8. 
 Sweetsei - . Bates, 487. 
 • Iber, mi. 
 
 v. Smith, 7' ■ ;. 
 Swift 7 . Agnes, 442. 
 
 v. liar;, 321, 703. 
 
 v. Ma^s. Mut. Life Ins. Co., 4S7. 
 Swinford v. Rogers, 323. 
 Sydm >r v. > .• - . 456. 
 
 Syracuse Chilled Plow Co. v. Wing, 
 374. 536- 
 
 Taafi'e, Ex part,-, (47. 
 
 Tabor v. Van Tassell, 490, 558. 
 
 Taff v. Hosmer, 24--. 
 
 Taft v. Marsily, 552. 
 
 Taggart v. Stanbery, 396. 
 
 Talbott r'. Randall, 140. 
 
 Talcott v. Harder, 703, 704, 705. 
 
 v. I less, 371, 609. 
 Talley v. Curtain, 7. 
 Tallmadge v. Sill, 76. 
 Tall on 7'. Ellison, 620. 
 Taltarum's Case, 651. 
 Tams v. Bullitt, 232. 
 Tantum v. Green, 5S, 6S, 690, 693. 
 
 v. Miller, 717, 72-. 
 Tapia t. Demartini, 391. 
 Tappan v. Evans, 126, 178. 
 Tapscott -■. Lyon, 37. 
 Tarback v. Marbury, 422. 
 Tarbell v. Griggs, 153, 154. 
 Tarrant v. Backus, 659. 
 Tarsney r\ Turner, 523. 
 Tasker v. Moss, 142. 
 Tate v. Liggat. 140. 
 Taylor v. At wood, 341. 
 
 7'. Maker, I ; ( 
 
 --. Bowker, 139, 140, 142, 145, 
 1-7. 172. 
 
 v. Branscombe, 100, 168. 
 
 v. Cloud, 739. 
 . I Dickinson, 338. 
 
 7'. I larwell, '.40. 
 1 1' ilmes, 144, 221. 
 
 v. Tones, 40, 107, 380. 
 
 ?•. Mason 
 
 -■. Miles, 373. 
 
 v. Missouri Gla^s Co., 389. 
 v. Robinson, . 
 I aylor, 312. 
 ?\ United 
 
 LSI u I - |. 
 
 Taylor v. Webb, 252, 255, 264, 491. 
 
 v. Weld, 737. 
 
 7 . Wend ling, 406. 
 Teabout v. Daniels, 469. 
 Teague v. Lindsey, 436. 
 Tedesco v. Oppenheimer, 632. 
 Tedrowe v. Esher, 492, 495. 
 Teed v. Valentine, 146, 193, 194, 366, 
 
 476. 
 Teese v. Huntingdon, 499. 
 Tefft v. Stern, 347. 
 Teller v. Randall, 235. 
 Ten Broeck v. Sloo, 68, 69. 
 Ten Eyck v. Witbeck, 379. 
 Tennent v. Battey, 159. 
 Tennessee Nat. Bank 7'. Ebbert, 619, 
 
 625. 
 Tenney v. Evans, 61, 358. 
 Terrell v. Green, 403. 
 Terry v. Anderson, 131, 145, 172. 
 
 v. Calnan, 220. 
 
 7-. Hopkins, 544. 
 
 v. Munger, 547. 
 
 v. Tubman, 178. 
 
 7. Wheeler, 465. 
 Tessier 7 . Wyse, 333. 
 Tevis v. Doe, 108. 
 Texas v. Chiles, 474, 475. 
 Texas & Pac. Ry Co. v. Cox, 269. 
 Thacher v. Phinney, 196, 198, 370. 
 Thames v. Rembert, 301, 399, 666, 699. 
 Thatcher v. Candee, 562. 
 Thayer v. Thayer, 543. 
 Third Nat. Bank v. Guenther, 393, 
 
 531. 
 
 Thomas, /;/ re, 230. 
 
 v. Beals, 341. 
 
 7'. Black, 491. 
 
 7: Hubbell, 476. 
 
 7'. Mackey, 272, 275, 277. 
 
 7. McEwen, 55. 
 
 7 . Merchants' Bank, 151. 
 
 7'. Pyne. 416. 
 
 v. Sullivan, 400. 
 
 v. Talmadge, 558. 
 Thomason v. Neeley, 109, no, 309. 
 Thompson v. Adams, 70. 
 
 v. Baker, 297. 
 
 v. Bickford, 6i, 340. 
 . lllanchard, 450, 459. 
 
 7\ Brown, 226. 
 
 v. Crane, 193. 
 
 7'. Cundiff, 56, 541. 
 
 7'. Diffenderfer, 103. 
 . I >rake, 407. 
 
 7'. Duff, 692. 
 
 v. Feagin, 526. 
 '<•• Fry, 547. 
 
 v. Furr, 34. 
 
 v. Hall, 485. 
 
 v. Loenig, 529. 
 
 7'. Moore. 45, 214. 
 
 7'. Murphy, 660. 
 
 7. Xixon, 68.
 
 References'] TABLE OF CASES. 
 
 lxi 
 
 Thompson v. Paret, 453. 
 
 v. Pennell, 424. 
 
 v. Rainwater, 549. 
 
 v. Richardson Drug Co., 425, 
 618. 
 
 v. Robinson, 183, 416. 
 
 v. Sanders, 304. 
 
 v. Sherrard, 335. 
 
 v. Thompson, 87, 638. 
 
 v. Tower Mfg. Co., 394, 434. 
 
 v. Towne, 75. 
 
 v. Van Vechten, 142, 167, 219, 
 247. 
 
 v. Whitmarsh, 561. 
 
 v. Wilhite, 470. 
 
 v. Yeck, 454. 
 Thompson's Appeal, 146. 
 Thomson v. Crane, 92, 180. 
 
 v. Dougherty, 199, 203, 209, 210. 
 
 v. Hester, 181. 
 Thornberry v. Baxter, 258. 
 Thornburgh v. Hand, 520. 
 Thorne v. Bank, 451. 
 Thornton v. Cook, 462. 
 
 v. Hook, 7. 
 
 v. Tandy, 490. 
 Thorp v. Keokuk Coal Co., 81. 
 Thouron v. Pearson, 418, 419. 
 Thrasher v. Bentley, 549. 
 Threlkel v. Scott, 276. 
 Throckmorton v. Chapman, 432. 
 
 v. Rider, 478. 
 Thurber v. Blanck, 103, no, 159, 161, 
 
 173, 174, 175, 242. 
 Thurston v. Rosenfield, 551. 
 Tibbals v. Jacobs, 468. 
 Tichenor v. Allen, 258. 
 Ticknor v. McClelland, 454, 470. 
 Ticonic Bank v. Harvey, 167. 
 Tiernan v. Poor, 280. 
 Tiernay v. Claflin, 670. 
 Tildesley v. Lodge,. 670. 
 Tilford v. Burnham, 129. 
 Tillinghast v. Bradford, 65, 637, 650, 
 
 654, 657, 660. 
 Tillman v. Heller, 478. 
 Tillotson v. Wolcott, 90, 116. 
 Tillou v. Britton, 705. 
 Tilson v. Terwilliger, 459, 461, 488, 
 
 49°- 493- 
 Tilton 7'. Beecher, 306. 
 
 v. Cofield, 260, 297, 315, 697, 702. 
 Tisch v. Utz, 491. 
 Tobev v. Leonards, 303. 
 Tobie & Clark Mfg. Co. v. Waldron, 
 
 1S3. 
 Todd v. Lorah. 3S7, 388. 
 
 v. Monell, 35, 66. 
 
 v. Nelson, 193, 195, 196. 
 
 v. Sawyer, 640. 
 Tognini v. Kyle, 7, 20, 399, 452, 465. 
 Toker v. Toker, 77. 
 Tolbert v. Horton, 140. 
 Tolland Co. Ins. Co. v. Underwood, 659. 
 
 Tolles v. Wood, 84, ;S, 650, 
 
 661. 
 Tolman ?>. Marlborough, 80. 
 
 v. Ward, 357. 
 Tolputt v. Well! 
 Tomlinson t. Matthews, 525. 
 Tompkins v. Fonda, 66, 68, 1 17, 545. 
 
 7'. Hunter, 4''. 549. : 
 
 7'. Nichols, 303, 468, 477. 478. 
 
 v. Purcell, ti6, 1 5 \. 
 
 v. Sprout, 32, 346, 349. 
 Toney v. McGehee, 7, >i, i_. [97 
 Toof v. Martin, 481. 
 Tool Co. v. Norris, 597. 
 Tooley v. Bacon, 371. 
 Topping v. Lynch, 457. 
 Torbert v. Hayden. 628. 
 Totten 7 . Brady, 704. 
 Towers v. Hagner, 524. 
 Towle v. Hoit, 33, 480. 
 Town of Norwalk v. Ireland, 526, 527, 
 
 528. 
 Town of Venice v. Woodruff, 263. 
 Towne v. Fiske, 493. 
 
 v. Smith, 517. 
 Townsend v. Early, 647. 
 
 v. Little, 463, 670, (172. 
 
 v. Mayor of New York, 245. 
 
 v. Stearns, 478, 567, 605, 606, 6< '7. 
 
 v. Tuttle. 184 
 
 v. Whitney, 223. 
 
 v. Williams, 306. 
 Townshend v. Windham, 76, 77, 209. 
 Tracy v. Cover, 92. 
 
 v. Tuffly, 563, 612. 
 Trade-Mark Cases, 72. 
 Traders' Nat. Bank v. Day, 452. 
 
 v. Steere, 707, 723. 
 Tradesman Pub. Co. v. Knoxville C. 
 
 W. Co., 240. 
 Traer v. Clews, 587. 
 Train v. Kendall, 614. 
 Traip v. Gould, in. 
 Trapnell v. Conklyn, 94. 
 Trappes v. Meredith, 657. 
 Trask v. Bowers, 463. 
 Travers v. Ramsay, 452. 
 Traynor & Keith, /// re, 640. 
 Trefts 7'. King, 673. 
 Trego v. Skinner, 104, 259, 267. 
 Tremain v. Richardson, 555. 
 Trenton Banking Co. v. Duncan, 507, 
 
 509- 
 Tresch v. Wirtz, 94, 531. 
 Treusch v, Ottenburg, 359, 502. 
 Trezavent 7'. Terrell, 180, 1S1. 
 Trier v. Herman, 150, 365. 
 Trimble 7\ Turner, 210. 
 
 v. Woodhead, 229, 230, 235. 
 Tripp v. Vincent, 294. 
 Troll v. Carter, 720. 
 Trotter v. Watson, 493. 
 Trough, Estate of, 542. 
 Troughton v. Troughton, 76.
 
 Re/trencet'] TABLE OF CASES. [are to pages. 
 
 Troup :■. Smith, 514. 
 Trovinger v. McBurney, 599. 
 Trowbridge v. Milliard, 139, 520. 
 Troxall 1 . Applegarth, 7. 
 
 Troy v. Smith, 477. 
 
 Truax v. Slater, 489, 490, 491. 
 
 Truesdell v. Bourke, 474. 
 
 1 . Sarles, [95, 207, 273, 294, 504. 
 Trull i , 69S. 
 
 Trumbull?. Hewitt, 356, 361, 474, 501. 
 
 v. I 'nion Trust Co., 563. 
 Truscott •■. King, 391, 396. 
 Trust Co. v. Sedgwick, 326, 545. 
 Truster Relief Act, In re, 51. 
 Tryon v. Flournoy, 418, 421. 
 
 V. Whitmarsh, 6S5. 
 Tucker v. Andrews, 360. 
 
 v. Drake, 92. 
 
 v. Parks, 301. 
 
 V. Tucker, 104, 543- 
 
 v. Zimmermar, -•<><>. 
 Tuckwood v. Hawthorn, 486. 
 Tudor v. De Long, 397. 
 Tuite v. Stevens, 185. 
 Tumlki v. Crawford, 30. 
 Tupper f. Thompson, 100, no. 
 
 V. Wise, 740. 
 Turbeville i\ Gibson, 407. 
 Turlcy v. Massengill, 640, 660. 
 Turner v. Adams, 140, 145, 167, 168, 
 169. 
 
 ?■. Douglass, 577. 
 
 v. First Nat. Hank, 263. 
 Fi 'wler, 640. 
 
 v. Hallowell Sav. Inst., 640. 
 
 v. Jaycox, 607, 608. 
 
 t'. Nye, 524. 
 
 v. Robinson, 260. 
 
 v. Turner, 183, 244. 
 
 v. Vaughan, 89. 
 Turnley v. Hooper, 59. 
 Tuthill v. Skidmore, 4S5. 
 Tuttle 7'. Turner, 297. 
 Tuxbury 7\ Miller, 712. 
 Tux worth ?'. Moore, 464. 
 Twyne's Case, 36, 38, 46,48,49, 50, 51, 
 52, 188, 375, 380,402, 412, 416, 443, 
 447. 621, 741. 
 Tyberandt v. Rauckc, 434. 
 Tyler v. Angevine, 372, 496, 513. 
 
 7. Peatt, 140. 
 
 v. Tyler, 221, 222, 243, 381, 720. 
 Tyler Paper Co. v. Orcutt-Killick Lith. 
 Co., 421. 
 
 1 'hi v, Dillon, km), 101, 332. 
 
 7'. Robison, 452. 
 1 Fhlfelder v. Levy, n>=. 146. 
 ' 'lire v. Melum. 
 
 Ullrich v. Ullrich, 102, 271, 526, 
 Unangsl v, Goodyear I. K. Mfg. Co., 
 
 I'M. 
 
 Underwood -.•. Sutcliffe, 234, 235, 242, 
 3'4. 
 
 Union Bank :■. Ellicott, 615. 
 
 7. Kansas City Bank, 135, 387. 
 Union Nat. Bank v. Reed, 280. 
 
 v. Warner, 313, 314, 322, 324, 
 
 342.7"7- 
 Union Stock Yards Bank v. Gillespie, 
 
 83- 
 Union Trust Co. v. Southern Inland 
 
 Nav. & Imp. Co., 297. 
 United States v. Amer. Bell Tel. Co., 
 219, 2S7. 
 
 v. Amistad, 29, 113. 
 
 7'. Beebee, 509. 
 
 v. Budd, 304. 
 
 v. Griswold, 204, 341, 406, 492. 
 
 i'. Hooe, 34, 391. 
 
 v. Lotridge, 416. 
 
 v. Stiner, 194. 
 
 v. Thirty-six Barrels of High 
 Wines, 500. 
 
 v. Throckmorton, 147. 
 
 7\ Union Pacific Ry., 99. 
 
 v. Wilson, no. 
 Updike 7'. Ten Broeck, 392. 
 
 7'. Titus, 392. 
 Upshur 7'. Briscoe, 339. 
 Upton v. Englehart, 237. 
 
 v. McLaughlin, 284, 513, 515. 
 
 7-. Tribilcock, 237, 240, 268. 
 Usher 7'. Hazeltine, 211, 667. 
 Utterson v. Vernon, 37. 
 
 Valentine, Matter of, 86. 
 
 v. Austin, 29S. 
 
 v Lunt, 666, 670. 
 
 v. Richardt, 293, 324, 325, 330. 
 Van Alstyne v. Cook, 298. 
 Van Bibber v. Mathis, 20, 368, 540. 
 Van Buskirk :\ Warren, 123. 
 Vance i-. McNabb Coal, etc., Co., 237. 
 
 7'. Phillips, 368. 
 
 v. Sch rover, 242. 
 Yanderpoel v. Gorman, 614, 615. 
 
 7'. Van Yalkenburgh, 251, 259. 
 Van Deusen v. Sweet, 336. 
 Van Doren v. Mayor, etc., 245. 
 Van Dyck 7'. McCjuade, 279. 
 Van Etten v. Hurst, 158. 
 Van Heusen 7\ Radcliff, 143, 232. 
 Van Home ?■. Campbell, 640. 
 Van Kleeckv. Miller, 147,259, 291, 534. 
 Yanmeter v. Estill, 454, 626. 
 \'.in Nest 7'. Yoe, 556, 573. 
 Van Patten v. Burr, 596. 
 Van Raahe ,-■. Harrington, 676, 686, 691. 
 Van Rensselaer v, Dennison, 640. 
 
 7'. Van Rensselaer, 330. 
 Van Schaick v. Third Ave. R. R. Co., 
 
 81. 
 Van Valkenburgh v. Torrey, 47. 
 Van Weel ?'. Winston, 273, 274. 
 Y.m Wickle 7'. Calvin, 223. 
 Van Winkle v. Armstrong, 569. 
 
 v. McKee, 717.
 
 References'] TABLE OF CASKS. [are i 
 
 Van Wy v. Clark, 717. 
 
 Van Wyck v. Baker, 276, 316, 317, 341. 
 
 v. Seward, 181, 183, 191, 208. 
 Vernum v. Hart, 616. 
 Vasser v. Henderson, 128, 140, 172, 
 
 176. 
 Vattier v. Hinde, 670. 
 Vaughan v. Thompson, 31. 
 Vause v. Woods, 335. 
 Veazie v. Somerby, 449. 
 Veeder v. Baker, 269. 
 Venable v. Bank of the U. S., 267, 
 
 406. 
 Venice v. Woodruff, 263. 
 Verner v. Downs, 177. 
 Vernon v. Morton, 556, 573. 
 Verplank v. Sterry, 189, 383. 
 Verselius v. Verselius, 281. 
 Vertner v. Humphreys, 528. 
 Very v. McHenry, 517. 
 Vick v. Lane, 253. 
 Vietor v. Levy, 419, 703, 704. 
 
 v. Nichols, 613. 
 Violett v. Violett, 357. 
 Virginia F. & M. Ins. Co. v. Cottrell, 
 
 275- 
 Vogler v. Montgomery, 31, 92. 
 Vogt v. Ticknor, 476. 
 Von Sachs v. Kretz, 489. 
 Voorhees v. Bonesteel, 94, 274, 303, 531, 
 532. 
 
 v. Carpenter, 233, 709. 
 
 v. Howard, in, 140, 179. 
 
 v. Seymour, 140, 476, 708. 
 Voorhis v. Gamble, 251. 
 Voshell v. Hynson, 338. 
 Vredenbergh v. White, 448. 
 Vreeland v. N. J. Stone Co., 1, 505. 
 Vrooman v. Turner, 81. 
 
 W. v. B. (32 Beav. 574), 729. 
 
 Wabash St. L. & P. Ry. Co. v. Ham, 
 
 205, 237. 
 Waddams v. Humphrey, 482. 
 Waddell v. Lanier, in, 228. 
 Waddingham v. Loker, 7. 
 Wade v. Rusher, 105. 
 Wadhams v. Gay, 114. 
 Wadsworth 7'. Lyon, 223. 
 
 v. Schisselbauer, 128. 
 
 v. Williams, 196, 198, 229, 363, 
 491. 
 Wafer v. Harvey Co. Bank, 420, 500. 
 Wager v. Hall, 4S1. 
 
 v. Link, 81. 
 Waggoner v. Speck, 58. 
 Wagner v. Law, no, 247. 
 
 v. Smith, 34. 
 Wait v. Bull's Head Bank, 401. 
 
 v. Day, 385 
 Waite, Matter of, 239, 614, 738. 
 
 ?'. Harper, 712. 
 Wake t. Griffin, 534. 
 Wakeman v. Dalley, 9, 12, 568. 
 
 Wakeman v. Grover, [30, ■'•", 592. 
 Waldele v. X. \ I nti ! & II. R. R. 
 
 R. Co., 487, 4S8. 
 Walden v. Murdock, 4(15, 41.'., 7 
 Waldman v. O'Donnell, 117. 
 Wales ?'. Bowdish, 75. 
 
 t. Lawrem e, [62, [63, -'71 . 
 Walkenshaw v. Perzel, 482. 
 Walker ?■. Adair. 714. 
 
 ?'. Collins, 8, 6SS, 689, I 
 
 v. Denne, 335. 
 
 v. Lovell, 1 - 1 
 
 v. Pease, 27s. 
 
 v. Powers, 219, 265, 2S7, 288. 
 
 v. Reamy, 539. 
 
 7 r . Vincent, (>4<), 642, 
 
 7. Walker, 543. 
 Walkow v. Kingsley, 278. 
 Wall v. Fairley, 215, 217, 264. 
 
 v. Provident Inst., 22S. 
 Wallace v. Eaton, 251. 
 
 v. Lawyer, 58, 67. 
 
 v. Nodine, 445, 450, 470. 
 
 v. Penfield, 200, 201, 205, 208, 
 297. 
 
 v. Smith, 660. 
 
 v. Treakle. ~< 18. 
 Waller v. Shannon, 259. 
 
 v. Todd, 158. 
 Walradt v. Brown, 51, 244. 
 Walsh 7'. Ketchum, 437. 
 
 v. Mutual L. I. Co., 56. 
 Walter v. Gernant, 470. 
 
 v. Lane, 16, 189, 194, 204. 
 
 v. Riehl, 259, 2(17. 
 Walters v. Walters, 506. 
 
 v. Whitlock, 614. 
 Walthall v. Rives, 270. 
 Waltham v. Broughton, 5. 
 Walton v. Bonham, 726. 
 
 v. Ely, 232. 
 
 v. Tusten, 720, 735. 
 Wanner v. Snyder, 659, 663. 
 Waples Platter Co. v. Low, 158. 
 Ward v. Northumberland, 219. 
 
 v. Roy, 117. 
 
 v. Saunders, 492. 
 
 v. Trotter, 573. 
 
 ■v. Webster, 552. 
 Warden :•. Jones, <><>. 
 
 v. Marshall, 464. 
 Wardour v. Periston!, 500. 
 Ware v. Galveston City Co., 243. 
 
 :■. Gardner, 412. 
 Waring 7'. Mackreth, 305. 
 Warmoth v. Dryden, 4\=. 
 Warner?/. Blakeman, 30, ill, 114. 270, 
 280, 324. 
 
 ?>. Callendar, 105. 
 
 v. Daniels. 98. 
 
 v. Dove, 18S, 278. 
 
 v. Hopkins. - 
 
 v. Jaffray, 553, =^4. 61 i. 
 
 v. Littlefield, 485, ? I
 
 lxiv 
 
 References'] TABLE OF CASES. [are to pages. 
 
 Warner:. Mower, 615. 
 
 v, Norton, 41^. 452. 453. 459> 
 
 : . Ferry. 372. 
 
 . Warren, 356. 
 Warner Glove Co. v. Jennings, 703. 
 
 Warren :. His Creditors, I 
 
 r . fi »nes, 703. 
 
 v. Lee, 594. 
 
 v. Marcy, 29S. 
 
 : . Moody, 229, 230.. 
 
 V. Warren. 2- 
 
 V. Warren Thread Co., 71, 72. 
 . Williams, 185, 491, 501. 
 Warren County v. Marcy, 298. 
 Wartman v. Wartman, 353. 
 Warw ick v. Petty, 40S. 
 Washban i v. Washband, 35S, 376. 
 Washburn v. Goodheart, 92. 
 
 v. 1 1 untington, 278, 675. 
 
 v. Sprout 61 . 
 Washer v. Brown, 338. 
 Washington Central Hank v. Hume, 
 
 56, 57, 541. 542. 
 Washington Union Ins. Co. v. Wilson, 
 
 15- 
 Waterbury v. Sturtevant, 402. 
 Waterman v. Sprague Mfg. Co., 507. 
 Waters v. Dashiell, 231. 
 
 1 . Taylor. 5. 
 Watkins v. Arms, 424. 
 
 v. Uorsett, 67. 
 
 v. Jones, 730, 733. 
 
 v. Worthington, 4S4. 
 
 v. Wortman, 153. 
 Watkins Nat. Hank v. Sands, 597. 
 Watkyns v. Watkyns, 639 
 Watrous v. Lathrop, 17S. 
 Watson v. Bourne, 517. 
 
 v. Dodd, 04. 
 
 v. Riskamire, 18, 360. 
 
 v. Sutherland, 99. 
 Watson ^S: Woods, In re, 639. 
 Watt v. Grove, 430. 
 Watts v. Creswell, 695. 
 
 V. Wilcox, 249. 
 Waverly Nat. Bank 7'. Halsey, 601, 609. 
 Way v. Bragaw, 200, 290. 
 We id 7'. Gray, 640. 
 Wear v. Skinnei, 286. 
 Weare v. Williams, 675. 
 
 1 i . Pier< e, 521. 
 
 Weatherbi 1 1 ! . rell, 717. 
 
 r v. Fisher, 71. 
 
 v. I l-t\ Hand, 140, 143, 177. 271, 
 
 v. Nugent, 377. 
 
 I, 405. 
 Webb v. Armisti ad, 581. 
 
 7 . Helion, i" r . 
 
 v. Ingham, 43H 526. 
 
 v. Read, 297. 
 
 -■. Thomas, 616. 
 Weber V. Armstrong. 020. 
 
 V. Mi<:k, 24, 354, 549, 594, 596, '.1 -. 
 
 Weber v. Rothchild, 308. 
 
 :■. Weber, 139. 
 Webster v. Clark, 139, 140, 142, 172. 
 
 v. Folsom, 107, 164. 
 
 f. Hildreth, 60. 
 
 v. Lawrence, 140, 158. 
 
 v. Peck, 462. 
 
 7'. Upton, 237. 
 
 7 . Withey, 667. 
 Weed 7'. Davis, 437. 
 
 v. Pierce, 51, 5S, 106. 
 Weeden z\ Hawes, 406. 
 Weeks v. Hill, 36S, 3S6. 
 
 v. Prescott, 450. 
 Weider v. Maddox, 549, 614. 
 Weigtman v. Hatch, 131, 149, 172, 176. 
 Weil 7'. Lankins, 159. 
 Weir v. Day, 51, 183, 244. 
 Weis v. Dittman, 5C8. 
 
 7'. Goetter, 332. 
 Weise v. Wardle, 255. 
 Welch v. Bradley, 479. 
 Welcker v. Price, 305. 
 Welcome v. Mitchell, 274, 491. 
 Welde v. Scotten, 222, 245 
 Welles v. Fish, 514. 
 
 7'. March, 563, 564. 
 Wellington v. Small, 118. 
 Wells v. Knox, 252. 
 
 v. Langbein, 343, 632, 633. 
 
 v. Morrow, 671. 
 
 7 1 . O'Connor, 146, 476. 
 Welsh v. Britton, 57S. 
 
 v. Solenberger, 95, 249. 
 
 7'. Welsh, 224, 291. 
 Wemyss v White, 87. 
 Wendell v. Van Rensselaer, 508. 
 Werborn v. Kahn, 332, 70S. 
 Werner v. Zierfuss, 359, 364, 408. 
 Werts v. Spearman, 487. 
 Wescott T r . Gunn, 617. 
 Wessels v. Beeman, 372. 
 
 v. McCann, 454. 
 West v. Snodgrass, 33, 634. 
 West Coast Grocery Co. v. Stenson, 273. 
 Westerman v. Westerman, 243. 
 Western Transp. Co. v. Kilderhouse, 
 
 269. 
 Westmoreland v. Powell, 244. 
 Weston 7'. Blake, 288. 
 West Side Bank 7'. Pugsley, 114, 116. 
 Wetherbee ?■. Baker, 253. 
 Wetmore 7'. Truslow, 87. 
 
 V. Wetmore, 84, 85, 86, 87, 638. 
 650, 662. 
 
 : . Woods, 067. 
 Weyand v. Tipton, 520 
 Weymouth v. Chicago & N. W. Ry. 
 
 Co., 529. 
 Whaley v. Dawson, 219. 
 Wharton v. May, 479. 
 Wheadon V. Huntington, 502. 
 Wheat roft v. Hickman, 581. 
 Whedbee 7'. Stewart, 20.
 
 References] TABLE OF CASES. [are to page 
 
 Wheelden v. Wilson, 17, 371, 400, 411, 
 
 43". 434- 
 Wheeler v. Hillings, 396. 
 
 v. Konsc, 452. 
 
 v. Millar, 26S. 
 
 v. Sage, 724. 
 
 v. Wallace, 325. 
 
 v. Wheedon, 267. 
 Whipple v. Pope, 607. 
 Whitaker v. Gavit, 569. 
 
 v. Whitaker, 392. 
 
 v. Williams, 569. 
 Whitbread v. Jordan, 674, 675. 
 Whitcomb v. Fowle, 579. 
 White v. Banks, 555. 
 
 v. Benjamin. 14, 319, 398, 418, 
 479, 526, 527, 536, 609. 
 
 v. Bogart, 475. 
 
 v. Cotzhausen, 594, 595, 596, 607, 
 702, 706. 
 
 v. Davis, 318, 593. 
 
 v. Fagan, 573. 
 
 v. Geraerdt, 156. 
 
 v. Givens, 92. 
 
 v. Hall, 154. 
 
 v. Kuntz, 711, 713. 
 
 v. McPheeters, 353. 
 
 v. Perry, 7, 8, 9, 30, 49S. 
 
 v. Thomas, 660. 
 
 v. White, 65, 657, 660. 
 White's Bank of Buffalo v. Farthing, 
 
 215, 216, 218, 313, 314, 317. 335. 
 Whitesel v. Hiney. 27S. 
 Whiting v. Barrett, 88. 
 Whitney v. Davis, 104, 140, 143, 144, 
 146, 159, 160, 161, 162, 171, 
 
 174. 332. 
 
 v. Levon, 624. 
 
 v. Marshall, 165. 
 
 v. Rose, 432. 
 Whiton v. Snyder, 522, 524, 530. 
 Whitridge v. Whitridge, 516. 
 Whittaker v. Amwell Nat. Bank, 348. 
 
 v. Merrill, 552. 
 Whittington v. Jennings, 76. 
 Whittlesey v. Delaney, 146, 276, 476. 
 Wich v. Parker, 309. 
 Wickham v. Miller, 52. 
 Wicks v. Hatch, 356. 
 Wieting v. Bellinger, 641. 
 Wigsfin v. Bush, 712. 
 Wiggins v. Armstrong, 7, 101, 143, 
 148. 
 
 v. McDonald, Si. 
 Wilcox v. Fitch, 51. 
 
 v. Hovvland, 354. 
 
 v. Kellogg, 102. 
 Wilcoxen v. Morgan, 438, 697. 
 Wiles v. Suydam, 26S. 
 Wiley v. Carter, 733. 
 
 v. Gray, 528. 
 
 v. Knight, 19. 
 Wilkerson v. Schoonmaker, 476. 
 Wilkes v. Ferris, 607. 
 E 
 
 Wilkinson v. Babbit! . 
 
 ■' ■ Paddoi k, 313] 317. 545- 
 
 7'. Vale, [53, 
 Willetts v. Vandenburgh, [48. 
 Williams v. Ayrault, 
 
 v. Bankhead, 24'). 
 
 v. Banks, 204, 212, 223, 437. 
 
 v. Barnett, 399. 
 
 v. Benedict, 136. 
 
 v. Carle, 544. 
 
 v. Clink, 722. 
 
 v. Davis, 29, 206. 
 
 v. Evans, j< >. 
 
 7'. Ewing, 297. 
 
 v. Harris, 28, 523, 526, 527. 
 
 v. Hart, 493. 
 
 v. Higgins, 717, 718. 
 
 v. Hubbard, 97. 
 
 i'. Jackson, 671 >. 
 
 v. Kirtland, 135. 
 
 v. Leech, 640. 
 
 v. Lomas, 77. 
 
 v. Lord, 12. 
 
 v. Merritt, 229. 
 
 v. Michenor, 160. 
 
 v. Xeel, 290. 
 
 v. Rawlins, 32. 
 
 v. Sexton, 115. 
 
 v. Spragins, 272, 275. 
 
 v. Thorn, 84, 85, 86, 87, 115 638, 
 650, 661. 
 
 v. Whedon, 563, 579. 
 
 v. Williams, 493. 
 
 v. Winsor, 232, 626. 
 Williamson v. Brown, (.72, 673, 674, 
 6S3, 6S9. 
 
 v. Goodwyn, 415. 
 
 v. Williams, 7, 303, 325, 493. 
 Willison v. Desenberg, 407. 
 Willoughby v. Willoughby, 670. 
 Wilmerding v. Jarmulowsky, 676. 
 Wilson v. Anthony, 512. 
 
 v. Berg, 567. 
 
 v. Clark, 494. 
 
 v. Forsyth, 214, 557, ?(>?. 
 
 v. Hill, 465. 
 
 v. Horr, 294, 702. 
 
 v. Hunter, 694. 
 
 v. Jordan, 415. 
 
 v. Kohlheim, iSS. 
 
 v. Lazier, 12. 
 
 v. Lott, 405, 434. 
 
 v. McMillan, 94, 95, 
 
 v. Marion, 360, 
 686. 
 
 v. Pearson, 365. 
 
 v. Perrin, 136. 
 
 v. Prewett. 357, 690. 
 
 v. Robertson, 339, 3S9, 51 
 609. 
 
 v. Russell, 391. 
 
 v. Spear, 357. 
 
 v. Sullivan, 630. 
 
 v. Watts, 29.
 
 Ixvi 
 
 i m] TABLE ( >F CASES. [" r ' 
 
 Wilson Bros. W. v v T. C >. . ! ' 
 
 547- 
 Wilt v. Franklin, 2 
 Wimbish v. Tailbois, 45. 
 Winans z . < »rav< -. 718. 
 
 Winch's Appeal, 245. 
 Winchester v. Charter. 190, 191 
 
 407, 437. 
 +98. 
 tddy , 
 Winchester & P. Mfg. Co. v. Creary, 
 
 490, 49 1 - 
 Windhus v. Bootz, 377. 
 Windstandley v. Stipp, 272. 
 Win field Nat. Bank v. Croco, 523, 610, 
 
 Wingler v. Sibley, 626. 
 Winkle y v. Hill, 629. 
 Winsli iw v. \)> msman, 
 Winsor v. McLellan, 230. 
 
 v. .Mills, 640, 643. 
 Wisconsin Granite Co. v. Gerrity, 142, 
 
 176, 1--. 
 Wise v. Tripp, So. 
 
 v. Wheeler, 493. 
 
 v. Wilds, 432. 
 
 v. Wimer. 
 Wisner v. Barnet, 316. 
 Wiswall v. Sampson, 136. 
 Wiswell v. Jarvis. 553. 
 Witherwax v. Riddle, 414. 
 Withrow v. Biggerstaff, 501. 
 Winner's Appeal, 333. 
 Witz v. Osburn, 194. 
 Wolf v. Arthur, 355, 357. 
 Iraj . 577. 
 
 v. Stix, 339. 
 Wolfe v. (Tallin. 332. 
 Wolfer v. Hemmer, 640. 
 Wolford v. Farnham, 3S7. 
 Wollaston r 1 . Tribe, 77. 
 Wollensak v. Reiher, 2-3, 284. 
 Wood v. Amory, 273. 
 
 v. Carpenter, 2-3, 284, 2S5, 693, 
 
 v. Chambers, 31, 8S. 
 
 ' dapin, 247. 
 :•. Clark, <). 
 
 1 mrad, 567. 
 v. Dixie, 365, 705. 
 v. Dummer, 237. 
 v. Goff's Curator, 340. 
 
 1 [arrison, 529. 
 
 Hum, 340, 342. 
 . . Robinson, 268, I 71. 
 
 - 
 v. Sidney Sash, etc., Co., 249, 
 252, 259. 
 
 v. United States, 500. 
 Woodbridge t. Allen, 517. 
 
 ltf>n, 523. 
 Wood burn v. Mosher, 
 Woodhull v. Whittle, 393. 
 
 Imeston v. Walker, 646. 
 Woodruffs. Bowles, 357. 
 Woods v. Bugbey, 454, 466. 
 
 v. James. 285. 
 
 v. Morrell, 305. 
 Woodward v. Brooks, 614. 
 
 -■ Marshall. 581. 
 
 :■. Wyman, 3S1. 
 Woodworth v. Paige, 545. 
 
 7. Sweet, 531, 536. 
 Wi m ildridge 1 . Gage, 183. 
 Wooten v. Clark, 33. 4S0. 
 
 V. Steele, 171. 
 Wordall v. Smith, 446, 463. 
 Wurman v. Kramer, 453, 463. 
 Wormley v. Wormley, 671. 
 Worseley v. Demattos, 29, 399, 419, 
 
 422, 619. 
 Worthington v. Bullitt, 340, 437. 
 
 v. Shipley, 437. 
 Worthy v. Brady, 352, 353. 
 W. O. Tyler Paper Co. v. Orcutt-Killick 
 
 Lith. Co., 421. 
 Wray '■. Davenport, 35. 
 Wright v. Campbell, 150, 156, 166. 
 
 v. Davis, 515. 
 
 V. Delafield, 2 
 
 v. Hencock, 409. 
 
 - . Lee, 549. 
 
 r. Linn, 497. 
 
 v. McCormick, 431, 443, 454. 
 
 v. Mack, 293. 
 
 v. Mahaffey, 423. 
 
 v. Nostrand, 99, 115. 
 
 v. Oroville M. Co., 113. 
 
 v. Towle, 492. 
 
 v. Wheeler, 302. 
 
 v. Wright, 382. 
 
 v. Zeigler, 547. 
 Wyatt '■. Brooks, 299. 
 Wyckoff v. Carr, 489. 
 Wylie v. White, 660. 
 Wyman 7'. Brown, 197, 672. 
 
 7'. Mathews, 594. 
 Wynne :■. Cornelison, 283. 
 
 7'. Mason, 525, 526, 540. 
 
 Xenia I'.ank 7'. Stewart, 100. 
 
 Yale v. Bond, 451. 
 Yardley v. Torr, 1S2, 379. 
 Yates v. Law, 524. 
 
 v. Yates, 469, 492. 
 Yates County Nat. Bank v. Carpenter, 
 
 S9, 90. 
 Yeatman 7\ Savings Inst., 230. 
 Yeaton ?■ Lenox, 216. 
 Yeend -■. Weeks, 182. 
 Yocum v. Bullit, 132. 
 York 7'. Bright, 5 14. 
 
 -■. Merritt, 712. 
 
 :'. Rockwood, 279. 
 Yost 7'. I ludiburg, 437. 
 Youmans 7'. Boomhower, 55, 88.
 
 References] TABLE OF CASES. [are t 
 
 Ix 
 
 :\ 11 
 
 Young v. Rrush, 560. 
 v. Clapp, 596. 
 v. Edwards, 15. 
 v. Frier, 149. 
 v. Heermans, 21, 25, 34, 46, 66, 
 
 181, 277, 480. 
 v. Lathrop, 700. 
 v. McClure, 453, 461. 
 v. Parker. 260, 521. 
 v. Ward, 341. 
 v. Willis. 35. 
 v. Young, 660. 
 
 Youngs v. Carter, 134, 543. 
 
 Zabriskie v. Smith, 552. 
 
 Zane v. Fink, 721 », 
 
 Zell Guano Co. v. Heatherly, 294, 558. 
 
 Zick v. Guebert, 666. 
 
 Zimmer v. Miller, 371. 400, \t>>. 413. 
 
 Zimmerman v. Heinrichs, 1 
 
 v. Willard, 277. 
 Zoeller v. Riley, 299, 312, 666, 670. 
 Zoll v. Soper, 223, 2G4. 
 Zuver v. Clark, 24O.
 
 Gijsm > : Cmj 
 
 FRAUDULENT CONVEYANCES 
 
 CREDITORS' BILLS.
 
 FRAUDULENT CONVEYANCES 
 
 CREDITORS' BILLS. 
 
 CHAPTER I. 
 
 INTRODUCTORY OBSERVATIONS. — GROWTH OB 
 THE LAW CONCERNING FRAUDULENT CON- 
 VEYANCES.— PHASES OF THE SUBJECT. 
 
 § 1. Severity of the Roman law — 
 Modern changes. 
 
 2. Prevalence of fraudulent trans- 
 
 fers — The cause. 
 
 3. Scope of the inquiry. 
 
 4. Forms of relief. 
 
 5. , Onus as to fraud — Suspicions 
 
 insufficient — Absence of pre- 
 «• ) sumptions. 
 
 7. Judge Black's views. 
 
 8. Proof of moral turpitude. 
 
 9. Fraud in fact and fraud in 
 
 law. 
 
 10. The cases considered. 
 
 11. Words "hinder, delay, or de- 
 
 fraud." 
 
 12. Word "disposed" construed. 
 
 i V'j. No definition of fraud. 
 
 14. Restraints upon alienation. 
 
 15. Fraudulent conveyances - Char- 
 
 acteristics and classes. 
 
 16. Fraudulent conveyances at com- 
 
 mon law — Statutes declara- 
 tory. 
 
 17. Covinous transfers of choses in 
 
 action. 
 
 18. Early statutes avoiding fraudu- 
 
 lent conveyances. 
 
 19. Statute, 13 Eliz. c. 5, and its ob- 
 
 ject. 
 
 20. Its interpretation and construc- 
 
 tion. 
 
 21. Statute, 27 Eliz. c. 4. 
 
 22. Twyne's Case. 
 
 "The rule is universal, whatever fraud creates, justice will destroy. — Vice-Chancellor Van 
 Fleet in Vreeland v. Xcw Jersey Stone Co., 29 N. J. Eq. 190. 
 
 § 1. Severity of the Roman law — Modern changes. — It 
 has been truly observed that the protection and preserva- 
 tion of the rights of creditors must be a fundamental 
 policy of all enlightened nations. 1 The method by which 
 
 1 Story's Eq. Jur. § 350 ; Creditors 
 are "a favored class," Fouche v. 
 Brower, 74 Ga. 251 ; Gable v. Colum- 
 
 bus Cigar Co.. 140 Ind. 563, 566, 38 N. 
 
 E. Rep. 171. citing the text.
 
 INTRODUCTORY OBSERVATIONS. 
 
 this protection may be extended and rendered practically 
 effectual is, however, a problem very difficult of solution. 
 The barbarous practice which prevailed among the 
 ancient Romans of putting an insolvent to death, or sell- 
 in^ him into slavery, 1 pictures to our imaginations the 
 stron^ legal and moral foundation which a pecuniary 
 obligation had in the minds of the people in early times. 
 The penalty for the failure to pay a debt was as severe 
 as that which is now ordinarily imposed upon criminals 
 for the commission of the most heinous of crimes. 2 
 
 1 Holmes' Common Law, p. 14. Bays: 
 •' This line of thought, together with 
 I be quasi material conception of legal 
 obligations as binding the off ending 
 body which has been noticed, would 
 perhaps explain the well-known law 
 of the Twelve Tables as to insolvent 
 debtors. According to that law, if a 
 man was indebted to several cred- 
 itors and insolvent, after certain for- 
 malities they might cut aphis bodj 
 and divide it among them. If there 
 was a single creditor he might put 
 his debtor to death or sell him as a 
 slave." 
 
 ' After the judicial proof or con- 
 fession of the debt, thirty days of 
 grace were allowed before a Etonian 
 was delivered into the power of bis 
 fellow-citizens. In this private prison, 
 twelve ounces of rice were his daily 
 food : he mighl be bound with a 
 chain of fifteen pounds' weight ; and 
 his misery was thrice exposed in the 
 market-place, to solicit the com- 
 passion of his friends and country- 
 men. At the expiration of sixty 
 days, the debt was discharged i>> the 
 loss of libertj or life ; the insolvent 
 debtor was either pnt to death, or 
 Bold in for< ign slavery beyond the 
 Tiber ; but it several creditors weir 
 alike obstinate and unrelenting, thej 
 might legally dismember bis body, 
 
 and satiate their revenge by this 
 horrid partition. The advocates for 
 this savage law have insisted, that 
 it must strongly operate in deterring 
 idleness and fraud from contracting 
 debts which they were unable to dis- 
 charge." Gibbon's History of the 
 Decline and Fall of the Roman 
 Empire, vol. iv. , pp. 372-373. It 
 seems incredible that the following 
 extract could ever have found its 
 way into an English report: "If a 
 man be taken in execution, and lie in 
 prison for debt, neither the plaintiff 
 at whose suit he is arrested, nor the 
 sheriff who took him, is bound to 
 find him meat, drink, or clothes ; but 
 he must live on bis own, or'on the 
 charity of others ; and if no man will 
 relieve him, let him die in the name 
 of God, says the law ; and so say I." 
 Byde, Justice, in Manby v. Scott, 1 
 Mod. 132 ia. d. 1663). In Maine's 
 Ancient Law, 11th ed., p. 321, it is 
 said: "Considered historically, the 
 primitive association of Conveyances 
 and Contracts explains something 
 which often strikes the scholar and 
 jurisl as singularly enigmatical, I 
 mean the extraordinary and uniform 
 severity of very ancient systems of 
 law to debtors, and the extravagant 
 powers which they lodge with cred- 
 itors."
 
 § 2 INTRODUCE >RV OBSER\ A riONS. 3 
 
 The chains which held a debtor in the power of his 
 creditor have one by one been broken, 1 but the sacredness 
 of a promise to pay a debt, notwithstanding the abroga- 
 tion of the ancient penalties, is still voluntarily cherished 
 by the mass of mankind. Yet, unfortunately, the protec- 
 tion and preservation of the rights of creditors is often 
 the last consideration with a numerous class of careless 
 or dishonest insolvents. Satisfied of utter inability to pay 
 maturing debts, their remaining property is frequently 
 diverted to inequitable purposes or squandered with reck- 
 less profusion. The confiding creditor, when driven to 
 the necessity of seeking a discovery of equitable assets, 
 often finds at the end of the litigation nothing but a mass 
 of worthless securities or "a beggarly account of empty 
 boxes." 2 The underlying reasons for this deplorable 
 condition of affairs will be briefly considered. 
 
 §2. Prevalence .of fraudulent transfers — The cause. — 
 Since the general abolition of imprisonment for contract 
 debts, dishonest people have grown bolder and more 
 reckless, and the power of creditors to enforce payment 
 of just obligations has been correspondingly diminished. 
 This humane reform in our law, which was inspired by 
 the desire to relieve honest but unfortunate debtors from 
 the painful consequences formerly incident to insolvency, 
 is now eagerly availed of by unscrupulous people, who 
 contract obligations with little expectation and no proba- 
 bility of fulfilling them. Abolition of imprisonment for 
 debt removed the chief barrier and preventive of fraudu- 
 lent conveyances, viz. : the terror of the debtor's prison. 
 The personal liberty of the debtor being no longer ;it 
 
 1 "The tendency of legislation for tirely prevent, the efforts of unfeel- 
 
 the last century has almost uniformly ing creditors to oppress and punish 
 
 been in favor of the poor but honest him for his poverty." Stevens v. 
 
 debtor, and the object of nearly every Merrill, 41 N. H. 315. 
 law upon the subject has been to dis- 2 Burtus v. Tisdall, 4 Barb. (N. Y. 
 
 courage and discountenance, or en- 590.
 
 4 INTRODUCTORY OBSERVATIONS. §2 
 
 stake, the natural tendency has been to promote reckless 
 and extravagant expenditures, and to encourage and foster 
 wild business speculations. 
 
 The cost of every reform must be borne by some 
 person or class of persons, and creditors are, at the present 
 time, paying the great price exacted by this radical change 
 in remedies. The collection of a debt by ordinary pro- 
 cess of execution against property on a judgment is now, 
 comparatively, a rare occurrence. Hence we have in our 
 modern jurisprudence a perplexing problem with which 
 our forefathers were little vexed, — i. e., the question how 
 to neutralize or avoid, in favor of creditors, colorable or 
 covinous transfers of property which this violent change 
 in remedies has rendered it difficult, if not impossible, to 
 wholly prevent or suppress. Collusive voluntary convey- 
 ances and secret fraudulent trusts and reservations of a 
 thousand dyes, calculated to hinder and defraud creditors, 
 are the constant and daily subject of investigation in our 
 courts. .The temptation of debtors who have not the 
 skill to acquire property honestly, or who have been over- 
 whelmed by some unavoidable disaster, to enrich them- 
 selves, or their trusted relatives, at the expense of credit- 
 ors, by some transaction "wearing a deep complexion of 
 fraud, " seems to be irresistible. This is especially the 
 case in a country such as ours, where the comforts and 
 delights which accumulated property brings are so acces- 
 sible and well guarded, and in which the acquisition of 
 wealth may be regarded as a profound passion. It may 
 be possible to pity the infirmity of the human mind sink- 
 ing under an approaching pressure of distress, and resort- 
 ing to fraudulent means of protection and provision for a 
 family, but the law cannot approve or sanction such trans- 
 actions. 1 Probably the most severe trial to which an 
 honest man can be subjected is the inability to pay his 
 
 Crofl v. Townsend, 3 Desuus. (S. C.) 229.
 
 8 3 SCOPE OF INQUIRY. 5 
 
 debts, even by the application of all his means. He for- 
 gets to render unto C?esar the things which are Cesar's. 
 He is assailed by temptations of interest, of pride, of 
 shame, of affection, to wander from the straight line of 
 duty and integrity, while at the same time he is intrusted 
 by the law with dominion over property which equitably 
 and justly should be devoted to his creditors. 1 
 
 The quantity of litigation engendered by fraudulent 
 conveyances is appalling, and the cunning devices and 
 intricate schemes resorted to by debtors to elude the vig- 
 ilance of creditors would, if no moral turpitude was in- 
 volved, challenge admiration. The condition of the body 
 of our law upon this subject is far from satisfactory, and 
 may be said to still be in a formative and unsettled state. 
 
 §3. Scope of the inquiry. — It will be our purpose to 
 elucidate the principles of law affecting conveyances 
 made by debtors in fraud of creditors, both in this 
 country and in England, to collate the authorities, and 
 to point out, somewhat at length, the practical methods 
 by which such collusive trusts can be successfully exposed 
 and unraveled, the property regained for creditors, and 
 the prevalent modern tendency of debtors to hinder, 
 delay, and defraud their creditors, by colorable transfers 
 and secret trusts, correspondingly repressed. Bills filed 
 to reach equitable assets, not subject to execution, will 
 necessarily receive incidental consideration. 
 
 The power of a creditor to inflict anything in the 
 nature of a punishment upon his debtor being practically 
 abrogated in civil procedure, 2 his right to a thorough and 
 
 1 Hafner v. Irwin, 1 Ired. (N. C.) See Waltham v. Broughton, 2 A.tk. 
 Law, 499. 43. Nor to exercise any censorial 
 
 2 It is not the function of a court of authority. See Waters v. Taylor, -J 
 equity to consider fraud in the light Ves. & B. 299. Chancery jurisdiction 
 of a crime, nor to punish the guilty in cases of fraud may !><• invoked in 1 
 party by imposing exemplary costs. civil but not in a criminal point of
 
 6 1 I >RMS i '1 RELIEF. § 4 
 
 searchinL: investigation as to transfers of the debtor's 
 property, in the disposition of which the creditor may 
 justly claim to have an equitable interest, 1 at least to the 
 extent of his demand, should manifestly be facilitated. 
 Such, we are happy to notice, is the general modern 
 tendency of the law, and one of the aims of this treatise 
 will be to show the need of a still further enlargement of 
 these facilities. The practical details of procedure in 
 this class of litigation will receive particular attention. 
 The rights of bona Jide purchasers and grantees of debtors 
 for valuable consideration will necessarily be embraced 
 in the discussion 
 
 ^ 4. Forms of relief. — The general purpose of creditors' 
 actions, it may be observed, is two-fold ; first, to reach 
 assets, such as choses in action, which, by reason of their 
 intrinsic nature, cannot be taken on execution at law ; 
 and second, to recover property, whether tangible or 
 intangible, which has been fraudulently alienated by the 
 debtor. ~ In the one case the creditor comes into court 
 " to obtain satisfaction of his debt out of the property of 
 the defendant, which cannot be reached by execution at 
 law ; " in the other case he proceeds " for the purpose of 
 removing some obstructions fraudulently or inequitably 
 interposed to prevent a sale on execution." 3 It is 
 
 view. In Hamilton Nat. Bk v an equitable interest in the property 
 
 Balsted, 134 N Y. 522. :'>l X. E. Rep. of their respective debtors— it being 
 
 900, the court Bay, "It a fraudulent tin- foundation of trusting them — 
 
 transferee sell the property before the which the Jaw will, under certain cir- 
 
 commencement of tin- action to set cumstauces, enforce." See also $T14. 
 
 aside the transfer, a judgment for the '•'See Chap. III. 
 
 value of tin interests transferred to 3 Cornell v. Railway, 22 Wis. 264; 
 
 liini may be recovered, but however Beck v. Burdett, 1 Paige (N. Y.) 305. 
 
 lalousthi fraud may be the court ln Jones v. Green, 1 Wall. 331, Field, 
 
 is powerless i" award judgment . I., said: " A court of equity exercises 
 
 against him for a Bum exceeding such its jurisdiction in favor of a judgment- 
 
 value." creditor only when the remedy a£- 
 
 v. Johnson, To Me. 261, forded him at law i- ineffectual to 
 
 where the court'say : " Creditors have reach the propertj of tin' debtor, or
 
 §5 
 
 ONUS AS TO FRA1 D. 
 
 believed that as to the first class of cases the jurisdiction 
 of equity in favor of creditors was created to supplement 
 the imperfect relief given by execution. 
 
 § 5. Onus as to fraud — Suspicions insufficient — Absence of 
 presumptions. — The great obstacles to the effective 
 development of the branch of our law under considera- 
 tion from the creditor's standpoint are, the natural tend- 
 ency of the courts not to presume fraud, 1 in the absence 
 of substantial proof of it, and the extreme difficulty 
 attendant upon showing that a transaction, fair and per- 
 fect on its face, and having every semblance of validity, 2 
 
 the enforcement of the legal remedy 
 is obstructed by some incumbrance 
 upon the debtor's property, or some 
 fraudulent transfer of it." See Scott 
 v. Neely, 140 U. S. 113, 11 S. C. Rep. 
 712 ; Wiggins v. Armstrong, 2 Johns. 
 Ch. (N. Y.) 144 ; Talley v. Curtain, 54 
 Fed. Rep. 45. 
 
 1 See Crawford v. Kirksey, 50 Ala. 
 591; Kempner v. Churchill, 8 Wall. 
 369; Erb v. Cole, 31 Ark. 556; Pusey 
 v. Gardner, 21 W. Va. 469; Toney v. 
 McGehee, 38 Ark. 427; Matthai v. 
 Heather, 57 Md. 484; White v. Perry, 
 14 W. Va. 86; Hord's Adm'r v. Col- 
 bert. 28 Gratt. (Va.) 49; Williamson v. 
 Williams, 11 Lea (Tenn.) 356; Tog- 
 nini v. Kyle, 15 Nev. 464; Hempstead 
 v. Johnston, 18 Ark. 123; Thornton v. 
 Hook, 36 Cal. 223; Foster v. Brown, 
 65 Ind. 234; Parkhurst v. McGraw, 24 
 Miss. 134; Henckley v. Hendrickson, 
 5 McLean 170; Bartlett v. Blake, 37 
 Me. 124; Waddingham v. Lokei\ 44 
 Mo. 132; Kellogg v. Slawson, 15 Barb. 
 (N. Y.) 58, affi'd;il N. Y. 302; Ex 
 parte Conway, 4 Ark. 356; Burgert 
 v. Borchert, 59 Mo. 80; Herring v. 
 Wickham, 29 Gratt, (Va.) 628: Sem- 
 mens v. Walters, 55 Wis. 684, 13 N. 
 W. Rep. 889; James v. Van Duyn, 45 
 Wis. 512; Fuller v. Brewster, 53 Md. 
 
 359; Grover v. Wakeman, 11 Wend. 
 (N. Y.) 192: Troxall v. Applegarth, 
 24 Md. 163; Anderson v. Roberts, 18 
 Johns. (N. Y. ) 515; Cunningham v. 
 Dwyer. 2:5 Md. 211); Juzan v. Toulmin, 
 9 Ala. 602; Nichols v. Patten, 18 Mr. 
 231: Cowee v. Cornell, 75 N. Y. 99; 
 Killian v. Clark, 3 MacAr. I >. C.) 379, 
 afli'd as Clark v. Killian, 103 U. S. 
 766; Jones v. Simpson, 116 TJ. S. 615. 
 6 S. C. Rep. 538: Dexter v. McAfee, 
 163 111. 508: Mathews v. Rrinliar.lt, 
 149 111. 635, 37 N. E. Rep. 85; Robi 
 v. Buckley, 145 N. Y. 215, 224, 39 N. 
 E. Rep. 966; Phelps v. Smith, 116 ln.1. 
 387,;17 N. E. Rep. "602; Fulp v. Bea- 
 ver, 136 Ind. 319, 36 N. E. Rep. 250; 
 Rider v. Hunt, 6 Tex. Civ. App. 238; 
 Bank of Commerce v. Schlotfeldt, 40 
 Neb. 212, 58 N. W. Rep. 727; Robin- 
 son v. Dryden, lis Mo. 534, 24 S. W. 
 Rep. 448; Olson v. Scatt, 1 Col. App. 
 94,27 Pac. Rep. 879; Fortner v.Whelan, 
 87 Wis. 88, 58 N. W. Rep. 253; lea- 
 ders v. Whallon, 74 Jinn (N. Y. 
 26 N. Y. Supp. 614. 
 
 -In Graffam v. Burgess, 117 U. S. 
 180. 186, 6 S. C. Rep. 686, the courl 
 say: "It i> insisted that the proceed- 
 ings were all conducted according i<> 
 the forms of law. Y. rvlik.lv. Some 
 of the most atrocious Iran. Is air com-
 
 8 I »NUS AS TO FRAUD. § 5 
 
 the guilty participants in which are often the chief witnesses 
 in subsequent judicial inquiries, is, in fact, vicious and 
 colorable. Then there exists in some quarters an uncon- 
 scious or mistaken sympathy with or for debtors, whose 
 fraudulent acts and transactions bear the imprints of 
 intellectual acuteness. The clever or brilliant scoundrel 
 too often escapes with his ill-gotten gains in the maze of 
 admiration excited by his audacity. Fraud, it is also 
 argued, will not be lightly imputed, 1 and cannot be estab- 
 lished by circumstances of mere suspicion. 2 This same 
 general proposition may be stated in an infinite variety 
 of ways, and by the use of different words. Thus irregu- 
 larities and carelessness sufficient to arouse a suspicion do 
 not supply the place of proof of fraud. 3 The presence of 
 fraud will not be presumed where an instrument admits 
 of an opposite construction. 4 The law presumes, in the 
 absence of evidence to the contrary, that the business 
 transactions of every man are done for an honest pur- 
 pose. The common law, 5 it is argued, is tender of presum- 
 ing fraud from circumstances, and expects that it be made 
 manifest or plainly inferable. Courts will attribute errors 
 
 mitted in that way. Indeed, the 3 Je\vett v. Bowman, 29 N. J. Eq. 
 
 greater the fraud intended, the more 174. 
 
 particular che parties to it often are to 'Bank of Silver Creek v. Talcott, 22 
 
 proceed according to the snidest Barb. (N. Y.)560; Keagy v. Traut, 85 
 
 forms of law." s. p., Schroeder v. Va. 390, 7 S. E. Rep. 329; Nbrris v. 
 
 young,161TJ. S. 339.16S.C. Rep. 512. Lake. 89 Va. 513, 16 S. E. Rep. 668; 
 
 •Jones v. Simpson, 116 U. S. 615, 6 Jacobs v. Allen. 18 Barb. (N. Y.) 550; 
 
 Walker v. Collins. 59 Kellogg v. Slauson, 11 N. Y. 302; Crook 
 
 Bep. 73; Batch v. Bayley, 12 v. Rinskopf, 105 N. Y. 476, 12 N. E. 
 
 Oush. (Mass.) 30; Bamberger v. School- Rep. 171. 
 
 field, 160 U. 8. L63, L6 8. C. Rep. 225. .lours v. Simpson, 116 U. S. 615, 
 
 Erb \ Cole, :;i Ark. 556; Pratl \. 6 S.C. Uep. 538; Baughman v. Penn, 
 
 Pratt, '."•■ III. L84; Myers v. Sheriff, 21 3:5 Kan. 504, 6 Pac. Rep. 890; Hilgen- 
 
 I... \i,n. 17J: White v. Perry, 11 \V. berg v. Northup, 134 [nd. 94, 33 N. E. 
 
 Va. 86; Bryanl v. Simoneau, 51 III. Rep. 786; Stark v. Starr, 1 Sawyer 15. 
 
 327; Buck v. Sherman, 2 Doug. (Mich.) ^Roberts on Fraud. Conv., p. 12; 
 
 176; Jewett v. Bowman, 29 X. .1. Eq. Leque \. Smith, 63 .Minn. 27, citing 
 
 171. Batchelderv. Whit-. 80 Va. 103; the text 
 Daniel v. Vaccaro, 1 1 \ rl
 
 § 5 ONUS AS TO FRAUD. 9 
 
 to mistake rather than to fraud, 1 and will not base con- 
 clusions of fraud upon mistaken or careless expressions 
 of opinion. 2 A dishonest purpose should not be pre- 
 sumed. 3 Then it is vaguely asserted that fraud is a fact 
 which must be proved. Courts will not strive to force 
 conclusions of fraud, is the language employed. 4 There 
 must be something more than mere speculative inference 
 to establish its existence. 5 And if the party charging 
 fraud does no more than create an equilibrium, he 
 fails to make out his case. 6 In Drinker v. Receiver 
 of Erie Railway, 7 Van Fleet, V. C, said: "Although 
 entertaining painful doubts touching the honesty and fair- 
 ness of many of the transactions charged to have been 
 fraudulent," this court " felt constrained, for the want of a 
 sure conviction of the truth of the evidence mainly relied 
 on to establish the fact of fraud, to dismiss the complain- 
 ant's bill." As we shall presently see, it is considered not 
 to be enough to create a suspicion of wrong. 8 The credi- 
 tor must prove tangible and substantial facts from which 
 a legitimate inference of a fraudulent intent can be 
 drawn. 9 The evidence must convince the understanding 
 that the transaction was entered into for a purpose pro- 
 
 ! Ayres v. Scribner, 17 Wend. (N. Toney v. McGehee, 38 Ark. 427: G 1- 
 
 Y.) 407: Goodev. Hawkins, 2 Dev. Eq. man v. Siinonds, 20 How. 360. 
 
 (N. C.)393. 6 Kaine v. Weigley, 22 Pa. St. 179 ; 
 
 2 See Hubbell v. Meigs, 50 N. Y..480; Bernheimer v. Rindskopf. 116 N. Y. 
 Wakeman v. Dalley, 51 N. Y. 27. 436, 22 N. E. Rep. 1074. 
 
 3 Raymond v. Morrison, 59 Iowa 1 52 N. J. Eq. 574. 
 
 374, 13 N. W. Rep. 332; Hager v. 8 Crow v. Andrews. 'JI Mo. App. 159. 
 
 Thomson, 1 Black, 80; Grant v. Ward, 9 Jaegar v. Kelley, 52 X. Y. 276; 
 
 64 Me. 239; Jones v. Simpson, 116 U. Sherman v. Hogland, 73 End. 177: 
 
 S. 615, 6 S. C. Rep. 538; Brown v. White v. Perry, 14 W. Va. 86; Bord's 
 
 Dean, 52 Mich. 267, 17 N. W. Rep. 837; Adm'r v. Colbert, 28 Gratt. (Va.) 19; 
 
 Wood v. Clark, 121 111.359, 12 N. E. Herring v. Wickham, 29 Gratt. (Va.) 
 
 Rep. 271; Baughman v.Penn, 33 Kan. 628; Hasie v. Connor, 53 Kan. 721, ::7 
 
 504, 6 Pac. Rep. 890. Pac. Rep. 128. Circumstances amount- 
 
 4 Crawford v. Kirksey, 50 Ala. 591. ingto mere suspicion of fraud are not 
 
 5 Battles v. Laudenslager, 84 Pa. St. to be deemed notice of it. siiimis\. 
 
 451; Ex parte Conway, 4 Ark. 356; Morse, A Hughes 582. See Grant v. 
 
 National Bank, 97 U. S. 80.
 
 IO ONUS AS TO FRAUD. § 5 
 
 hibited by law. 1 It may be circumstantial, but it must be 
 persuasive. 2 Hence " a court will not presume fraud and 
 undue influence merely from the fact that the conveyance 
 is made by a sister to a brother ; " 3 nor from circumstances 
 which merely indicate unusual generosity. 4 Finch, J., in 
 delivering the opinion of the New York Court of Appeals, 
 said : " Fraud is to be proved and not presumed. 5 It is 
 seldom, however, that it can be directly proved, and usually 
 is a deduction from other facts which naturally and logic- 
 ally indicate its existence. Such facts, nevertheless, must 
 be of a character to warrant the inference. It is not 
 enough that they are ambiguous, and just as consistent 
 with innocence as with guilt. They must not be, when 
 taken together and aggregated, when interlinked and put 
 in proper relation to each other, consistent with an honest 
 intent. If they are, the proof of fraud is wanting." 6 
 Daniels, J., said, in Marsh v. Falker: 7 "In all actions 
 for deceit the presumption is in favor of innocence ; and 
 on that account the intent or design to deceive the plain- 
 tiff must be affirmatively made out by evidence." i But 
 courts of justice, while conceding to honest acts their wide 
 and ample defense, must look through the devious ways 
 and the thin gauze, by which fraud is sought to be hid- 
 
 Pratt \. Pratt, 96 111. 184; Lalone 6 Shultz v. Hoagland, 85 N. Y. 467; 
 
 '. Dnited States, L64 U. S. 257. Bernheiiner v. Rindskopf, 116 N. Y. 
 
 'Lalone v. United States, 164 U. S. 436, 22 N. E. Rep. 1074. See Ames v. 
 
 257. Gilmore, 59 Mo. 537; Jewell v. Knight, 
 
 Spicer v. Spicer, 22 J. <V s. < X. Y.) 123 U. S. 426, 8 S. C. Rep. 193. 
 
 281. MON. Y. 566. 
 
 lii-t National Bank v. Irons, '28 "See Fleming v. Slocum, 18 Johns. 
 
 N. .1. Eq 48. (N. Y.) 403; Jackson v. King, 4 Cowen 
 
 Citing Grover v. Wakeman, 11 (N. Y.)220; Starr v. Peek, 1 Hill (N. 
 
 Wend. (N. Y.)?188. 's,.. Jones v. Y) 270; Bamberger v. Schoolfield, 160 
 
 Simpson, lit; r. s. 615, 6 S. C. Rep. U. S. 168, L6 S. C. Rep. 225; Dexter v. 
 
 Bernheimerv. Rindskopf, L16N. McAfee, 163 111.508. 
 Y. 186, 22 N. E. Ri p. 1074; Baird v. 
 Mayor, etc., of N. Y. 96 N. Y. 567.
 
 ONUS \S TO FRA1 D. 
 
 I 1 
 
 den, and must not let it go scot-free for want of direct, 
 explicit and positive testimony. 1 
 
 § 6.— The badges and evidence of fraud will be discussed 
 presently. 2 We may here observe that mere inadequacy 
 of consideration, unless extremely gross, 3 does not per se 
 prove fraud. 4 The disparity as to consideration 6 must 
 be so glaring as to satisfy the court that the conveyance 
 was not made in good faith. 6 Neither can fraud be pre- 
 sumed unless the circumstances on which such presump- 
 tion is founded are so strong and pregnant that no other 
 reasonable conclusion can be drawn from them,' and it 
 seems that even strong presumptive circumstances of 
 fraud will not always outweigh positive testimony against 
 
 1 Reynolds v. Gawthrop, 37 W. Va. 
 13, 16 S. E. Rep. 364. In Baer v. 
 Rooks, 50 Fed. Rep. 900, the court say: 
 ' ' It is the prevailing practice, in cases 
 involving an issue of fraud in fact, 
 for the court to repeat to the jury this 
 trite scrap of judicial phraseology 
 [fraud is never presumed but must be 
 proved], and it is commonly followed 
 by a statement that fraud, like any 
 other fact, may be proved by circum- 
 stantial evidence; but it would be an 
 unwarranted impeachment of the in- 
 telligence of the juries of this country 
 to suppose that they do not have a 
 knowledge of these common truths. 
 Every man knows that fraud, no more 
 than murder, trespass or debt, is pre- 
 sumed against a man, and that fraud, 
 as well as murder, trespass" or a debt, 
 may be proved by circumstances as 
 well [as by the positive testimony of 
 eye witnesses." 
 
 2 See Chap. XVI. 
 
 3 Cobb v. Day, 106 Mo. 300. 17 S. W. 
 Rep. 323. 
 
 4 Kempner v. Churchill, 8 iWall. 
 369 ; Smith v. Henkel, 81 Va. 529. 
 5 See Chap. XV. 
 
 6 Fuller v. Brewster, 53 .M.I. 361. 
 Compare Feigley v. Feigley, 7 Md. 
 537 ; Copis v. Middleton, 2Madd. 410 ; 
 Ratcliff v. Trimble, 12 B. Mon. (Ky.) 
 32. In Mobile Savings Bank v. .Mc- 
 Donnell, 89 Ala. 447, 8 So. Rep. 137, 
 the court say: "We are fully aware 
 that the view we have taken is some- 
 thing of a departure from the 
 ally received doctrine in other courts, 
 as well as former dicta of this court, 
 which are to the effect, in general 
 terms, that mere inadequacy of price, 
 short of a disparity so gross as to 
 shock the conscience of mankind, is 
 only a badge of fraud, and, of itself, 
 is not to be taken as establishing the 
 existence of evil intent ; l>ut. in our 
 jurisprudence, that doctrine, it' any 
 weight i to be given to our repeated 
 enunciations on the subject, or to the 
 reasons upon which our decisions are 
 based, is and must be confined to sales 
 other than in the paymenl of antece- 
 , dent'debts by insolvent debtors drawn 
 in question by other creditors." 
 
 " Paxton v. Boyce, 1 T( £. 311 Se< 
 Clemens v. Brillhart, 17 Neb. 337.
 
 12 I »NUS AS TO FRAUD. § 6 
 
 it; 1 nor will fraud be inferred from an act which does 
 not necessarily import it. 2 If an honest motive can be 
 imputed equally as well as a corrupt one, the former, as 
 we have already seen, should be preferred. 3 - 1 
 
 Good faith in business transactions is a settled pre- 
 sumption of law, 4 and, manifestly, as we have seen, the 
 burden of proof is on the party who assails good faith and 
 legality. 5 ' 1 Many an important case has been wrecked at 
 the trial, or abandoned by the creditor, on account of the 
 great embarrassments which this formidable onus imposed. 
 This presumption is the creditor's stumbling block on the 
 one hand and the shield of unscrupulous debtors on the 
 other. The creditor is constantly forced to carry the war 
 into the enemy's country, and to take by storm the forti- 
 fications which the fraudulent debtor or his allies have 
 carefully constructed to impede or repel the attack." It 
 is said in Nicol v. Crittenden, that it is impossible for a 
 transfer to be infraud of creditors unless it is made with 
 a fraudulent intent, and that the nature of the intent will 
 not be presumed as matter of law, but is to be inferred by 
 the jury from the facts in evidence. 7 This broad state- 
 ment of the principle is at least debatable and will be 
 
 1 The Short Staple, 1 Gall. 104. 31 ; .Marsh v. Falker, 40 N. Y. 566 ; 
 
 ,, 2 Toney v. McGehee, 38 Ark. 427. Starr v. Peck, 1 Hill (N. Y.) 270; 
 
 Herring v. Richards, 1 McCrary, Beatty v. Fischel, 100 Mass. 448 ; Jones 
 
 574; Roberts v. Buckley, 145 N. Y. v. Simpson, 116 U. S. 615, 6 S. C. 
 
 224 : I kmstanl v. University of Roch- Rep. 538. 
 ester, L33 X. V. 648. 5 Gutzweiler v. Lackmann, 39 Mo. 
 
 'Hager v. Thomson, 1 Black, 80; ( J1 ; Silvers v. Hedges, 3 Dana (Ky.), 
 
 Cooper v. Galbraith, 3 Wash. 546; 439 ; Wilson v. Lazier, 11 Gratt. (Va.) 
 
 Blaisdell v. Cowell. M Me. 870; <;utz- 477; Jones v. Simpson, 116 U. S. 615; 
 
 weiller v. Lackmann, 39 M<>. 91 ; Rob- 6 S. C. Rep. 538 ; Bambergerv. School- 
 
 erte v. Guernsey, 3 Granl (Pa.) 387; field, 160 U. S. 149, 16 S. C. Rep. 225; 
 
 Dougherty, 7 Yerg. (Tenn.) Hasie v. Connor, 53 Kan. 721, 37 Pac. 
 
 322; Richards v. Kountze, 4 Neb. 200; Rep. 128. 
 Beel on the Righl to Begin and Re- 8 55Ga.497. 
 
 ply, p. 57; Williams v. Lord, 75 Va. 'See Jewell v. Knight, 123 U. S. 
 
 Wakeman v. Dalley, 51 N. Y. 426, 435, 8 S. (J. Hep. 193.
 
 § 6 ONUS AS TO FRAUD. I 3 
 
 considered presently. 1 Then in Cummings v. Hurlbutt, 2 
 it was asserted that to set aside a written instrument on 
 the ground of fraud, the evidence of the fraud must be 
 clear, precise, and indisputable. A jury should not In- 
 permitted to find fraud sufficient to impeach a settlement 
 in writing, on any fancied equity, or on vague, slight, or 
 uncertain evidence, even though they might think it fairly 
 and fully satisfied them. As a general rule the transac- 
 tion which is the subject of attack has been evidenced in 
 writing, and the cases show that a deliberate deed or 
 writing, or a judgment of a court, is of too much solem- 
 nity to be brushed away by loose and inconclusive evi- 
 dence. 3 But an instrument which is part of the same 
 transaction, explaining the purpose of a deed absolute on 
 its face may be relied upon to show fraud connected with 
 the deed even though the instrument is not of even date 
 with the deed. 4 
 
 Fraud, on the other hand, is rarely perpetrated openly 
 and in broad daylight. It loves darkness and is commit- 
 ted in secret and privately, and is usually shrouded in 
 mystery and hedged in and surrounded by all the guards 
 which can be invoked to prevent discovery and exposure. 
 Its operations are invariably circuitous and difficult of 
 detection. 5 The proof of it is very seldom positive and 
 direct, 6 but, as we shall presently see, is dependent upon 
 very many little circumstances 7 and conclusions to be 
 
 1 See Coleman v. Burr, 93 N. Y. 31, Adelsberger, 122 N. Y. 4(57. 25 N. E. 
 and cases cited. See §§ 9, 10. Rep. 859. 
 
 2 92 Pa. St. 165. 5 Kaine v. Weigley, 22 Pa. St. L82. 
 
 3 See Howland v. Blake, 97 U. S. 6 Strauss v. Kranert, 56 111. 254 
 624; Fick v. Mulholland, 48 Wis. 413, Rea v. Missouri, 17 Wall. 532 ; Dens- 
 4 N. W. Rep. 346; Kent v. Las- more v. Tomer, 11 Neb. 118; Lock- 
 ley, 24 Wis. 654 ; Harter v. Christoph, hard v. Beckley, 10 W. Va. 87; Far- 
 32 Wis. 246 ; McClellan v. Sanford, 26 mer v. Calvert, 44 Ind. 209. 
 
 Wis. 595. "See Jewell v. Knight, 128 U.S. 
 
 4 Howell v. Donegan, 74 Hun (N. Y.) 426, 8 S. C. Rep. 193; Reynolds v. 
 410, 26 N. Y. Supp. 805. [See Knowles Gawthrop, 37 W. \'a. 13, 16 S. E. 
 v. Toone, 96 N. Y. 534 ; Kraemer v. Rep. 364.
 
 14 JUDGE BLACKS VIEWS. § J 
 
 drawn from the general aspects of the case. 1 Hence the 
 field of inquiry must be broad.-' 
 
 §7. Judge Black's views. — The learned Chief Justice 
 Black urged that the proposition that fraud could never 
 be presumed, but must be proved, could be admitted only 
 in a qualified and very limited sense. The idea that it 
 was a fundamental maxim of the law, incapable of modi- 
 fication, and open to no exception, was denied, and the 
 principle, as commonly declared, was said to have scarcely 
 enough extent to give it the dignity of a general rule. 
 This vigorous writer observes : " It amounts but to this : 
 that a contract, honest and lawful on its face, must be 
 treated as such until it is shown to be otherwise by evi- 
 dence of some kind, either positive or circumstantial. It 
 is not true that fraud can never be presumed. Presump- 
 tions are of two kinds, legal and natural. Allegations of 
 fraud are sometimes supported by one and sometimes by 
 the other, and are seldom, almost never, sustained by that 
 direct and plenary proof which excludes all presumption. 
 A sale of chattels without delivery, or a conveyance of 
 land without consideration, is conclusively presumed to 
 be fraudulent as against creditors, not only without proof 
 of any dishonest intent, but in opposition to the most 
 convincing evidence that the motives and objects of the 
 parties were fair. This is an example of fraud established 
 by mere presumption of law. A natural presumption is 
 the deduction of one fact from another. For instance : 
 a person deeply indebted, and on the eve of bankruptcy, 
 makes over his property to a near relative, who is known 
 not to have the means of paying for it. From these facts 
 a jury may infer the fact of a fraudulent intent to hinder 
 and delay creditors. A presumption of fraud is thus 
 
 'Newman v. Cordell, 43 Barb. (N. 'White v. Benjamin, 150 N. Y. 265 
 Y. us 161. See infra, Chap. XVI. 
 <>n [ndicia or Badges of Fraud.
 
 § 7 JUDGE BLACK'S VIEWS. 15 
 
 created, which the party who denies it must repel by clear 
 evidence, or else stand convicted. When creditors are 
 about to be cheated, it is very uncommon for the perpe- 
 trators to proclaim their purpose, and call in witnesses to 
 see it done. 1 A resort to presumptive evidence, there- 
 fore, becomes absolutely necessary to protect the rights 
 of honest men from this, as from other invasions." 8 The 
 popular statement that "fraud will not be presumed" 
 must be accepted understandingly, for it certainly can be 
 inferred from facts and circumstances, 3 and from decep- 
 tive assertions and incidents, 4 and it is considered to be 
 error to charge a jury that they cannot predicate fraud 
 upon inference or implication, 5 or that the proof must be 
 "irresistible," 6 or "clear and undoubted," 7 or that it 
 must be established beyond a reasonable doubt, 8 for evi- 
 dence that satisfies the mind will support a conclusion of 
 fraud, although it may not lead to a conviction of abso- 
 lute certainty. 9 Fraud is hardly ever proven positively, 
 and usually is shown by the outlook, the circumstances 
 and environment of the transaction, and the situation and 
 relations of the parties, and must be tested by ourknowl- 
 
 1 See Montgomery Web Co. v. Die- Sturm v. Chalfant, 38 W. Va. 243, 18 
 nelt. 133 Pa. St. 594, 19 Atl. Rep. 428. S. E. Rep. 451. 
 
 2 Kaine v. Weigley, 22 Pa. St. 183; 6 Carter v. Gunnels, 67 111. 270. 
 Goshorn v. Snodgrass, 17 W. Va. 717; 1 Abbey v. Dewey, 25 Pa. St. 413. 
 Sturm v. Chalfant, 38 W. Va. 248, 18 8 Kane v. Hibernia Ins. Co. 39 X. 
 S. E. Rep. 451. J. L. 697; Lee v. Pearce, 68 N. C. 76; 
 
 3 Lowry v. Beckner, 5 B. Mon. (Ky.) Sparks v. Dawson, 47 Tex. 13s ; Wash- 
 43; Sturm v. Chalfant, 38 W. Va. 248, ington Union Ins. Co. v. Wilson, 7 
 18 S. E. Rep. 451; Goshorn's Exr. v. Wis. 169; ^Etna Insurance Co. v. 
 Snodgrass, 17 W. Va. 766. Johnson, 11 Bush (Ky.) 587. 
 
 4 Sturm v. Chalfant, 33 W.Va. 248, » Marksbury v. Taylor, 10 Bust 
 260.18S. E. Rpp. 451; Reynold's Admr. (Ky.) 519; O'Donnell v. Segar, 35 
 v. Gawthrop, 37 W. Va. 13, 16 S. E Mich. 367; Lee v. Pearce. OS N. I \ 76; 
 Rep. 364. Linn v. Wright, 18 Texas 317; Lock- 
 
 5 Bullock v. Narrott, 49 111. 62: hard v. Beckley, 10 W. Va. 87; Young 
 O'Donnell v. Segar, 25 Mich. 367; v. Edwards, 72 Pa. St. 257; Bryanl v. 
 Reed v. Noxon, 48 111. 323; Goshorn's Simoneau, 51 111. 324. 
 
 Exr. v. Snodgrass, 17 W. Va. 766;
 
 i6 
 
 MoRAI. TURPITUDE. 
 
 §8 
 
 edge of human nature, and the motives and purposes 
 which move men in the ordinary transactions and affairs 
 of life. 1 
 
 §8. Proof of moral turpitude. — The authorities have 
 been multiplying, in certain quarters at least, to strengthen 
 the efforts of creditors to overcome this difficulty arising 
 from the presumption of validity and good faith in litiga- 
 tions to reach property fraudulently alienated. Many of 
 the cases attach little importance to the sworn assertion 
 of perfect good faith and entire honesty on the part of 
 the purchaser,' or of the seller, and the courts are trying 
 to unravel these forbidden transfers without exacting 
 explicit proof of moral turpitude. 3 The intent or intention 
 is regarded as an emotion of the mind, evidenced by acts 
 and declarations, and, as acts speak louder than words, if 
 a party is guilty of an act which defrauds another, his 
 declaration that he did not, by the act, intend to defraud, 
 is weighed down by the evidence of his own act. 4 A per- 
 
 1 Reynold's Admr. v. Gawthrop's 
 Heir-, 37 W. Va. 13, 16 S. E. Rep. 364. 
 Sadden v. spader, 20 Johns. 
 (N. 7.) 573, 573; Hendricks v. Robin- 
 son, 2 Johns. Ch. (N. Y.) 300; Fel- 
 lows v. Fellows, I Cow. (N. Y.) 709; 
 Barrow v. Bailey, 5 Fla. 20; Walter 
 x. Lane, 1 MacAr. (D. C.) 275. 
 
 Mr. May says: - 'The statute is 
 directed nol only against such trans- 
 fer- of property, as are made with the 
 express intention of defrauding credi 
 tors, hut .... extends a- well to 
 such as virtually and indirectly oper- 
 ate tli'- same mischief, by abusing 
 their confidence, misleading their 
 judgment, or secretly undermining 
 their interests ; to obviate which it 
 has gradually grown into a practice to 
 regard certain acts or circumstances 
 as indicative of a so-called fraudulent 
 intention in the construction of the 
 
 statutes, although perhaps there was. 
 in fact, no actual fraud or moral tur- 
 pitude. It is difficult in many cases 
 of this sort, to separate the ingredients 
 which belong to positive and inten- 
 tional fraud from those of a mere 
 constructive nature, which the law 
 thus pronounces fraudulent, upon 
 principles of public policy." May on 
 Fraudulent Conveyances, p. 4. 
 
 * Babcock v. Eckler, 34 N. Y. 633 ; 
 Coleman v. Burr, 93 N.Y. 31 ; Mande- 
 ville v. Avery, 4 1 N. Y. St. Rep. 4; 
 Newman v. Cordell, 43 Barb. (N. Y.) 
 156. In Booth v. Carstarphen, 107N. C. 
 395,401,13S. E. Rep. 375, thecourtsay: 
 "The fraudulent intent of a party 
 charged with fraud in any transac- 
 tion or matter appears from, and 
 iim-t be determined by, acts done or 
 omitted to be done — their nature, con- 
 nertinns, purpose and effect in con-
 
 § 8 MORAL TURP] I I DE. 17 
 
 son would not be likely to perform or accomplish an act 
 and afterwards proclaim that it was prompted by corrupt 
 motives. The moral sense is much weaker in some men 
 than in others, and it would be a strange rule which made 
 the rights of one man dependent upon the moral sense of 
 another man. There are certain rules founded in experi- 
 ence, and established by law, for determining the validity 
 of transfers under the statutes concerning fraudulent con- 
 veyances ; and a transgression of these rules will justify 
 courts and juries in avoiding the transaction without 
 regard to the opinions of the parties to it, and their evi- 
 dence should have little weight. 1 
 
 In French v. French, 2 Lord Chancellor Cranworth 
 remarked : " I shall not say that the transfer was volun- 
 tary ox fraudulent, but simply void as against the credit- 
 ors of William French," Again he observed in Spackman 
 v. Evans: 3 "I do not attribute moral fraud to the 
 appellant, but the whole transaction was fictitious." So 
 in Backhouse v. Jett, 4 Chief-Justice Marshall said : " The 
 policy of the law very properly declares this gift void as 
 to creditors, but looking at the probable views of the 
 parties at the time, there appears to be no moral turpi- 
 tude in it." 5 This principle may be further illustrated 
 from Gardiner Bank v. Wheaton, where the court say : 
 " When we pronounce the transaction between the 
 defendants, in respect to the conveyance from Gleason 
 
 templation of law. Such intent does the thought and purpose of the mind — 
 
 not depend upon nor consist in, nor is the intent — and of this the law takes 
 
 it to be ascertained from simply the notice.'* See Chapter XIV on Inten- 
 
 thought and purpose of the mind, but tion. 
 
 it depends upon, and is to be ascer- ' Potter v. McDowell, 31 Mo. 78. 
 
 tained from such thoughts and pur- ■ 6 De G. M. & G. 103. 
 
 poses evidenced and manifested by 3 L. R. 3 Eng. & Ir. A pp. 189. 
 
 and taken in connection with the 4 1 Brock. 511. 
 
 acts done or not done, and pertinent 5 See Logan v. Brick, '3 Del. < !h. 206. 
 
 facts and circumstances. It is the 6 8 Me. 381. See Wheelden v. Wil- 
 
 act or thing done or not done that son, 44 Me. 11. 
 gives cast, quality and character to 
 2
 
 [8 M< IRAL TURPITUDE. § 8 
 
 to Cole, as fraudulent, we do not mean to insinuate that 
 there was any moral turpitude on the part of Prince ; nor 
 do we believe there was any ; but though the motives of 
 a party may be good in such a transaction, still, where 
 the design, if sanctioned, would defeat or delay creditors 
 . . . , neither law nor equity can sanction the proceeding J 
 and on that account it is termed a legal fraud, or a fraud 
 upon the law." 1 " It was not necessary," said Dwight, 
 C, in Cole v. Tyler, 2 "that there should be any actual 
 fraudulent intent. 3 The requisite intent may be inferred 
 from the circumstances of the case." 4 The act may be 
 adjudged covinous although the parties deny all inten- 
 tion of committing a fraud, 5 and it is not necessary to 
 impute to the parties "a premeditated or wicked intention 
 to destroy or injure" the interests of others. A man 
 may commit a fraud without believing it to be a fraud. 7 
 The statute, 13 Eliz., refers to a legal, and not a moral 
 intent ; that is, not a moral intent as contradistinguished 
 from a legal intent. It supposes that every one is capa- 
 ble of perceiving what is wrong, and, therefore, if he does 
 that which is forbidden, intending to do it, he will not be 
 allowed to say that he did not intend to do a prohibited 
 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. 8 " It is not 
 important what motives may have animated the parties," 
 if the necessary effect of the disposition is to hinder and 
 
 3< e Jenkins v. Lockard, 66 Ala. Smith v. Reid, 134 N. Y. 568, 31 N. E. 
 
 381; Bibb v. Freeman, 59 Ala. 612. Rep. 1082. 
 
 •65 X. Y. 77. Compare Smith v. 6 Kirby v. Ingersoll, 1 Harr. Ch. 
 
 Reid, 134 X. ¥.568,31 X. K. Rep. 1082; (Mich.) 191. 
 
 Course) v. Morton, 132 X. Y. 556, 30 •■ Kirby v. [ngersoll, 1 Don-. (Mich.) 
 
 X i: Rep. 881. 17 7. 493. 
 
 Citing Mohawk Bank v. A-twater, ' Emma Silver Mining Co. v. Grant, 
 
 54. L. R. 17 Ch. I). 122. 
 
 impare Watson v. Riskamire, 15 B Grover v. Wakeman, 11 Wend. (N. 
 
 Iowa, 238 Coleman v. Burr, 93 X. Y. Y.)225. 
 31 : Graham v. Chapman, 12 C. B
 
 § 9 FRAUD l\ I A i I . 
 
 19 
 
 delay creditors. 1 It results that the mental operation or 
 emotion of the debtor, and the legal conclusion from the 
 acts and circumstances may be diametrically opposed. 8 "" 
 
 § 9. Fraud in fact and fraud in law. — Some of the authori- 
 ties maintain that there is not, for any practical purpose, 
 so far as the validity of a particular transaction may be 
 concerned, any difference between fraud in fact and fraud 
 in law ; 3 between a fraud proved by direct evidence, and 
 a fraud inferred by law from facts which are consistent 
 with the absence of an actual mental intent to defraud. 
 Whenever the effect of a particular transaction with a 
 debtor is to hinder, delay, or defraud creditors, the law 
 infers or supplies the intent, though there may be no 
 direct evidence of a corrupt or dishonorable motive, but, 
 on the contrary, an actual honest, but mistaken, motive 
 existed. The law interposes, and declares that every 
 man is presumed to intend the natural and necessary con- 
 sequences of his acts ; and the courts must presume the 
 intention to exist, when the prohibited consequences 
 must necessarily follow from the act, and will not listen 
 to an argument against it. 4 Hence it has been remarked 
 
 1 Moore v. Wood, 100 111. 451. standing the invalidity of a particular 
 
 2 See Chap. XIV ; Coleman v. Burr, provision." Citing Denny v. Bennett, 
 93 N. Y. 17 ; Roberts v. Vietor, 130 N. 128 U. S. 489, 496, 9 S. C. Rep. 134 ; 
 Y. 600, 29 N. E. Rep. 1025 : Sutherland Cunningham v. Norton, 125 U. S. 77. 
 v. Bradner, 116 N. Y. 410, 22 N. E. 8 S. C. Rep. 804; Muller v. Norton, 
 Rep. 554 ; Johnston v. Tuttle Bros., 65 132 U. S. 501, 10 S. C. Rep. 117: I >ar- 
 Miss. 494. Lhng v. Rogers, 22 Wend. (X. V 
 
 3 See §51. In Peters v. Bain. 133 Howell v. Edgar, 4 111. 417. 11'.); 
 U. S. 688, 10 S. C. Rep. 354, the court Ellis v. Valentine, 65 Tex. 534. 
 
 say: "We agree with the Circuit 4 Sims v. Gaines, 64 Ala. 396 : I *■ >i >• • v. 
 
 Court that, as respects fraud in law Wilson. 7 Ala. 694; Wiley v. Knight, 
 
 as contradistinguished from fraud in 27 Ala. 336; Potter v. McDowell, 31 
 
 fact, where that which is valid can be Mo. 69. See Bentz v. Rockey, 69 Pa. 
 
 separated from that which is invalid, St. 77; Harman v. Hoskin, 56 Miss. 
 
 without defeating the general intent, 142; Allan v. McTavish, 8 Ont. App. 
 
 the maxim ' void in part, voidin toto,' 1 Rep. 440, and cases cited ; Col' .'nan \ 
 
 does not necessarily apply, and that the Burr, 93 N. Y. 31, and cases cited; 
 
 instrument maybe sustained notwith- Schaible v. Ardner, 98 Mich. 70, 56 X.
 
 20 THE CASKS CONSIDERED. § IO 
 
 that where a conveyance, by its terms, operates to hinder, 
 delay, or defraud creditors, the intent to do so is imputed 
 to the parties, and no evidence of intention can change 
 that presumption. A different intent cannot be shown 
 and made out by the reception of parol testimony, nor 
 deduced from surrounding circumstances. 1 What is 
 meant by these cases is that, whether the fraudulent 
 intent is reasoned out and declared by the court, by the 
 proper application of the rules of legal construction 
 and interpretation, to the particular transaction or instru- 
 ment under consideration, or whether it is found by a 
 jury to exist as matter of fact, 2 in either case the transfer 
 is made with the intent to defraud creditors, and may be 
 avoided. Hence it is said that where the fraudulent intent 
 is not apparent on the face of the deed, it is a question 
 of fact for the jury, 3 and the court has not the power to 
 infer the intent. 4 
 
 § 10. The cases considered. — This subject may perhaps 
 be illustrated from the case of Harman v. Hoskins, 5 
 
 W. Rep. 1105; Morrill v. Kilner, 113 that in such cases the question of 
 
 111. 318. Compare State v. Estel, 6 fraud should be one of fact." 
 
 Mo. App. 6. In Wilt v. Franklin, 1 ' Farrow v. Hayes, 51 Md. 505 ; 
 
 Binn. (Pa.) 517, the court observed : Green v. Trieber, 3 Md. 11. See Sang- 
 
 " Although the statute, 13 Eliz., is stou v. Gaither, 3 Md. 40; Malcolm 
 
 bottomed on the supposition of an v. Hodges, 8 Md. 418 ; Inloes v. Amer. 
 
 unmoral intention, yet it has been Ex. Bank, 11 Md. 173; Barnitz v. 
 
 judged necessary to determine that Rice, 14 Md. 24 ; Whedbee v. Stewart, 
 
 certain circumstances, which, in their 40 Md, 414. 
 
 nature, tend to deceive and injure - Nicol v. Crittenden, 55 Ga. 497; 
 
 creditors, shall be considered as suffi- Williams v. Evans, 6 Neb. 216. 
 
 cii-nt evidence of fraud.'' In Ingle- 3 Van Bibber v. Mathis, 52 Tex. 409. 
 
 hart v. Thousand [aland Hotel Co., See Briscoe v. Bronaugh, 1 Tex. 327; 
 
 109 N. Y. 465, the court say : "The Bryant v. Kelton, 1 Tex. 415 ; Peiser 
 
 ture bas been averse to the v. Peticolas, 50 Tex. 638. 
 
 rule, at one time adopted by the 'Ehrisman v. Robert, GS Pa. St. 
 
 courts, tbat fraud in such cases was 308; Kelly v. Lenihan, 56 Ind. 450; 
 
 a question of law. and Bought to end Tognini v. Kyle, 15 Nev. 468; Mbn- 
 
 the controversy, which bad raged teith v. Bax, 4 Neb. 166. 
 
 mosi bitterly, by explicitly enacting -56 Miss. 142.
 
 § IO THE CASKS CONSIDERED. 21 
 
 where it is laid down that the intent may be vicious, 
 though the deed is fair and regular upon its face, and a 
 full price was paid. The intent must then be proved 
 aliunde. In cases where the transaction on its face is 
 fair, if it sprung from the motive to "hinder, delay, or 
 defraud " creditors, then the intent is purely a question 
 of fact to be established by the testimony. But a party 
 will be held as intending the natural and inevitable legal 
 effects of his acts. Hence if his deed, by its recitals, 
 necessarily operates to interpose unreasonable hindrance 
 and delay to creditors, or to entirely defeat their claims, 
 the question of intent will be practically a conclusion of 
 law. 1 A deliberate act which naturally and inevitably 
 produces a certain result, must, in law, be held to 
 have been contrived and performed to carry out and con- 
 summate that result. The court in such a case arrives at 
 the conclusion, by a proper construction of the instrument, 
 that such is its direct and inevitable effect, and it results, 
 as matter of law, that the statute is satisfied. In other 
 words, the transaction itself so palpably and conclusively 
 establishes the intent that testimony upon that point would 
 be superfluous, and a finding of a jury of an intent dif- 
 ferent from that which the legitimate construction of the 
 instrument furnishes, would be erroneous. 2 Thus in 
 Young v. Heermans, 3 a conveyance by a debtor of all 
 his property, real and personal, without consideration, 
 and in trust for the grantor's benefit during his life, and 
 after his death for the payment of his debts, was declared 
 to be fraudulent per se ; no evidence aliunde being deemed 
 necessary to establish the fraudulent intent. Proof of the 
 intention to enter into the prohibited transaction is all 
 that is requisite. When the courts declare an instrument 
 
 1 Houck v. Heinzman, 37 Neb. 463. 3 66 N. Y. 374. See Puller v. Brown, 
 
 5 See Dunham v. Waterman, 17 N. 76 Hun (N. Y.) 557, 38 N. V. Supp. 
 
 Y. 21. 189 ; Sloan v. Birdsall, 58 Hun (X. V.) 
 
 321, 11 N. Y. Supp. 814.
 
 THE CASES CONSIDERED. § IO 
 
 fraudulent on its face, it does not necessarily mean that it 
 was the offspring of a corrupt intent considered as a 
 mental operation, but that u it is an instrument the law 
 will not sanction or give effect to, as to third persons, on 
 account of its susceptibility of abuse, and the great 
 danger of such contracts being used for dishonest pur- 
 poses. 1 
 
 1 1 may scarcely be proper to say in these cases that there 
 is a presumption or conclusion of law that the transaction 
 is fraudulent, but rather that the circumstances of the 
 transaction, or the transaction itself, or the necessary and 
 inevitable inference, furnish conclusive evidence of fraud ; 
 and if, against such evidence, a jury, a judge, or referee 
 should find that there was no fraud, a new trial would be 
 granted, not because any legal presumption or conclu- 
 sion had been violated, but because the finding was 
 aeainst the weight of evidence : against conclusive evi- 
 dence.'~ The intent is gathered from the instrument, and 
 no external aid is necessary to develop it. 3 The fraud is 
 self-evident. 4 But to find fraud as matter of law it must 
 so expressly and plainly appear in the instrument as to be 
 incapable of explanation by evidence de/io?'s.° 
 
 Grover, J., an able judicial officer, and vigorous writer, 
 ignored the distinction between fraud in law and fraud in 
 fact, in these words : "A distinction is attempted, in some 
 of the cases, between fraud in law and fraud in fact. I 
 think there is no solid foundation for it. When upon the 
 face of the assignment any illegal provision is found, the 
 presumption at once conclusively arises that such illegal 
 
 '(Jay v. Bidwell, 7 Mich. 531, dis- 8 Harman v. Hoskins, 56 .Miss. 145. 
 
 Benting opinion of Manning, J. * Hardy v. Simpson, 13 Ired.(N.C) 
 
 ■Babcocb v. Eckler, 24 N. Y. 632 ; Law, 132, L39 ; Bigelow on Fraud, p. 
 
 [nglehari v. Thousand bland Hotel 468. 
 
 Co., 109 N. Y. 454, : 465. SeeBrunerv. Cheatham v. Hawkins, 76 N. C. 
 
 n, 189 Id. I. 6 109, 38 N. E. 835. 
 
 Rep. 818.
 
 £ IO THE CASES CONSIDERED. 2$ 
 
 object furnished one of the motives for making the assign- 
 ment ; and it is upon this ground adjudged fraudulent 
 and void. The result is the same when the illegal design 
 is established by other evidence. The inquiry is as to 
 the intention of the assignor." 1 Coleman v. Burr ~ is an 
 extreme illustration. The referee found that the convey- 
 ance was honest, but the transaction was set aside because, 
 from the facts found, the inference of fraud was inevit- 
 able. The same principle is enunciated in Roberts v. 
 Vietor. 3 
 
 " Fraud," said Mr. Justice Buller, in Estwick v. Cail- 
 laud, 4 " is sometimes a question of law, sometimes a 
 question of fact, and sometimes a mixed question of law 
 and of fact." Perhaps it would be more accurate to say 
 that fraud is never purely a question of law, nor exclu- 
 sively a question of fact, 5 though it frequently partakes 
 more largely of the one quality than of the other. Fraud 
 is not to be considered as turning solely on intent as an 
 emotion, but as a legal deduction. " What intent," said 
 Ruffin, J., is in law fraudulent, the court must inform the 
 jury, else the law can have no rule upon the doctrine of 
 fraud; and every case must create its own law." 6 Per- 
 haps the clearest division of fraud is into three classes ; 
 first, fraud that is self-evident, with which the jury have 
 nothing to do ; second, fraud which depends upon a 
 variety of circumstances usually connected with motive 
 and intent, which is an open question of fact for the jury, 
 
 1 Oliver Lee & Co.'s Bank v. Talcott, 134 N. Y. 575, 31 N. E. Rep. 1082 ; Ro- 
 
 19 N. Y. 148. See, in this connection, belts v. Victor, 130 N. Y. GOO, 29 N. 
 
 Lukins v. Aird, 6 Wall. 79, per Davis, E. Rep. 1025. 
 
 J.; Burrv. Clement, 9 Col. 1 ; Stevens :; 130 N. Y. 600, 29 X. E. Rep. L025. 
 v. Robinson, 72 Me. 381 ; French v. *5 T. R. 420. 
 
 Holmes, 07 Me. 189; Cunningham v. 5 Foster v. Woodfin, 11 Ired. i.V I .) 
 
 Freeborn, 11 Wend. (N. Y.) 252; Law, 339. 
 
 Peters v. Bain, 133 U. S. 670, 10 S. C. 6 Leadmau v. Barns, 3 Dev. i X I !.) 
 
 Rep. 354. Law, 146; Parrish v. Danford, 18 Fed. 
 
 -93 N. Y. 31. See Smith v. Reid, Cases. 1231, 1 Bond, 345.
 
 24 
 
 WORDS "HINDER, DELAY, OR DEFRAUD. 
 
 II 
 
 with instructions as to what constitutes fraud ; third, pre- 
 sumptive fraud where the presumption may be rebutted. 1 
 
 §11. Words "hinder, delay, or defraud."— To hinder and 
 delay creditors is to do something which is an attempt to 
 defraud, rather than the successful accomplishment of a 
 fraud ; to put some obstacle in the path, or interpose 
 unjustifiably some period of time before the creditor can 
 reach his debtor's property and apply it toward the 
 liquidation of the debt. 2 The words " hinder," " delay," 3 
 and "defraud" are not synonymous. 4 A conveyance 
 may be made with intent to hinder or delay without an 
 intent to absolutely defraud. Either intent is sufficient. 5 
 
 Hardy v. Simpson, 13 Ired. (N. C.) 
 Law. 139. In Coburn v. Pickering, 3 
 N. H. 415, Richardson, C. J., lays 
 down the rule that whether there was 
 any trust is a question of fact, but the 
 trust being proved or admitted, the 
 fraud is an inference of law which 
 the court must pronounce. His exact 
 language, after a discussion of the 
 authorities, is as follows : " It thus 
 seems to us, to be settled, as firmly 
 as any legal principle can be settled, 
 that the fraud which renders void 
 the contract, in these cases, is a secret 
 trust, accompanying the sale. . . . 
 It is, therefore, very clear, that fraud 
 U sometimes a question of fact, and 
 sometimes a question of law. When 
 the question is, was there a secret 
 trust? it is a question of fact. But 
 when the fad of a secret trust is ad- 
 mitted, or in any way established, the 
 fraud is an inference of law, which a 
 courl is bound to pronounce.." So, 
 upon like principle, it was held in 
 Phelps v. curt.. 80 III. 11'.', not to be 
 
 important what motive, may have 
 
 animated the parties, if they have so 
 disposed of the property thai the 
 necessary effed i. to binder ami delay 
 
 creditors. Such a disposition is, in 
 judgment of law, a legal fraud. To 
 the same effect, also, is Power v. Al- 
 ston, 93 111. 587; Emerson v. Bemis, 
 69 111. 53? ; Moore v. Wood, 100 111. 
 454. 
 
 2 Burnham v. Brennan, 42 N. Y. 
 Superior Ct. 63. 
 
 3 In Read v. Worthington, 9 Bosw. 
 (N. Y.) 628, Robertson, J., said : "To 
 hinder any one in bis course is, neces- 
 sarily, to delay him. Not being able 
 to perceive the distinction, I must 
 hold that none exists. Many such 
 pleonasms are to be found in old Eng- 
 lish statutes, where they are intro- 
 duced for caution's sake, more than 
 with any precise idea as to what they 
 were intended to effect." 
 
 4 Eickox v. Elliott, 22 Fed. Rep. 21. 
 
 5 Crow v. Beardsley, 0* Mo. 439; 
 Iv'upe v. Alkire, 77 Mo. 641 : Buell v. 
 Rope, 6 A pp. 1 )iv. ( X. Y.) 113 ; Kaufer 
 v Walsb, 88 Wise. 63, 59 N. W. Rep. 
 460. But in Weber v. Mick, 181 111. 
 520, -':: X. E. Rep. (lie, it was held that 
 an instruction to the effect that it was 
 not necessary to show that the con- 
 veyance was made to defraud, but 
 that intent to hinder and delay was
 
 §11 WORDS "HINDER, DELAY, OR DEFRAUD." 25 
 
 The statute is in the disjunctive and attempts to attach a 
 separate and specific meaning to each of the words which 
 it employs. 1 An instance of hindrance and delay within 
 the statute is given in a case in Pennsylvania, where a 
 debtor departed from the State leaving no property sub- 
 ject to the process of his creditor, and making no provi- 
 sion for the payment of his debts. 2 A better illustration 
 is to be found in a case in the New York Court of Appeals, 
 where the debtor conveyed his property in trust for his 
 own benefit during his life, and after his death for the 
 payment of his debts. 3 A conveyance made by an embar- 
 rassed debtor with a view, which was known to the pur- 
 chaser, to secure the property from attachment, is void as 
 against creditors, though honestly made, the debtor 
 intending that all creditors should be paid in full. 4 The 
 authorities avoiding assignments by the terms of which 
 the assignee is empowered to sell upon credit are, per- 
 haps, more in point than any of the illustrations given. 
 A conveyance of real estate by a debtor upon the under- 
 standing that the grantee should hold it in trust for the 
 grantor, and as fast as money could be realized therefrom, 
 should apply it to the payment of his debts, necessarily 
 operates to hinder and delay creditors. A debtor's prop- 
 erty is, in theory of law, subject to immediate process 
 issued at the instance of his creditors, and the debtor will 
 
 sufficient, was properly refused. In ' Burgert v. Borchert, 59 Mo. 83. 
 
 Dance v. Seaman, 11* Gratt. (Va.) * Heath v. Page, 63 Pa. St. 108. 
 
 778-782, the court say: "The fact 3 Young v. Heermans, 66 N. Y. 
 
 that creditors may be delayed or 374. Sees. p. Graves v. Blondell, To 
 
 hindered, is not of itself sufficient to Me. 194; Henry v. Einman, 25 Minn. 
 
 vacate such a deed, if there is absence 199 ; Macomber v. Peck, 39 Iowa 351 : 
 
 of fraudulent intent. Every convey- Lukins v. Aird, 6 Wall. 78; Donovan v. 
 
 ance to trustees interposes obstacles Dunning, 69 Mo. 436 ; Lore v. Dieri 
 
 in the way of the legal remedies of 19 J. & S. (N. Y.) 11 1. 
 
 the creditors, and may, to that extent, 4 Kimball v. Thompson, 58 Mass. 
 
 be said to hinder and delay them." (4 Cush.) 446. 
 See Keagy v. Trout, 85 Va. 394, 7 S. 
 E. Rep. 329.
 
 WORDS "HINDER, DELAY, OR DEFRAUD." §11 
 
 not be permitted to hinder or delay them by any device 
 which leaves it, or the avails of it, subject to his control 
 and disposition ; and it makes no difference that the 
 debtor intends to apply the avails of it to the payment of 
 his debts. 1 So a deed of trust creating a lien upon person- 
 alty for an indefinite period, the natural operation of 
 which is to benefit the grantor, is fraudulent as to credit- 
 ors,- as is also a sale on a credit to a son of the debtor on 
 the eve of attachment proceedings. 3 
 
 The statute seems to be aimed at three things which it 
 is supposed insolvents would possibly be tempted to do 
 for the purpose of avoiding or deferring the payment of 
 their debts. First, they might dispose of their property 
 in such manner as to interpose obstacles to legal process, 
 with intent to hinder creditors in the collection of their 
 demands ; or, second, to delay payment to some future 
 period ; or, third, to defraud their creditors by absolutely 
 defeating all attempts to enforce their claims. Any one 
 of these purposes is sufficient to avoid the transaction. 4 
 If the desi°m of a transfer is a lawful one, it matters not 
 that a creditor is thereby deprived of property which 
 mijjht otherwise have been reached and applied to the 
 payment of his debt. Hence it is that a general assign- 
 ment, 5 or a preference, 6 is upheld, though each is often 
 made or given to thwart some belligerent creditor. 7 The 
 secret motives that prompt the act in such cases are unim- 
 
 Smithv.Conkwright,28 Minn. 23. 128 O. S. 273.281.9 S. C. Rep. 65. See, 
 
 State v. Mueller, 10 Mo. App. 87. especially, the case of Nicholson v. 
 
 Blum v. McBride, 69 Tex. 60, 5 Leavitt, 6 N. Y. 510, 10 N. Y. 591. 
 
 s. W. Rep. 641. B Hoffman v. Mackall, 5 Ohio St. 
 
 • Burdick v. Post, 12 Barb. (N. Y.i 124; Hefner v. Metcalf, 1 Eead(Tenn.) 
 
 172; affi'd 6 N. Y. 522. See Pilling v. .")77 ; Grover v. Wakeman, 11 Wend. 
 
 on-. 13 Wis. 195 Burgerl v. Borchert, (N. V.) 194. 
 
 59 Mo. 80 : Crow \. Beardsley, n s Mo. c Hall v. Arnold. 15 Barb. (N. Y.) 
 
 435; Planters' Bank v. The Will. a 599; Hartshorn v. Eames, 31 Me. 98. 
 
 Mills. 60Ga, 168; Sutton v. Banford, 'Hartshorn v. Eames, 31 Me. 98; 
 
 11 Mich. 518; Davenporl v. Cum- Bolbird v. Anderson, 5 T. R. 235. 
 
 mings, 15 Iowa 219; Means v. Dowd,
 
 §12 WORD "disposed" construed. 27 
 
 portant. 1 Speaking of devices to aid the debtor, Davis, 
 J., said in Robinson v. Elliott:- "The creditor must 
 take care, in making his contract, that it does not contain 
 provisions of no advantage to him, but which benefit the 
 debtor, and were designed to do so, and are injurious to 
 other creditors. The law will not sanction a proceeding 
 of this kind. It will not allow the creditor to make use 
 of his debt for any other purpose than his own indemnity. 
 If he goes beyond this, and puts into the contract stipula- 
 tions which have the effect to shield the property of his 
 debtor, so that creditors are delayed in the collection of 
 their debts, a court of equity will not lend its aid to 
 enforce the contract." A debtor cannot take the law 
 into his own hands and attempt to secure the delay which 
 can only be obtained by the consent of the creditors. 3 
 
 § 12. Word "disposed "construed. — In Bullene v. Smith, 4 
 it appeared that section 398 of the Revised Statutes of 
 Missouri, authorized an attachment to issue in the follow- 
 ing, among- other cases : Where the defendant had fraud- 
 ulently conveyed or assigned his property so as to hinder 
 or delay his creditors ; where the defendant had fraud- 
 ulently concealed, removed, or disposed of his property or 
 effects, so as to hinder his creditors. The court held that 
 the word disposed, as here used, covered all such aliena- 
 tions of property as might be made in ways not other- 
 wise pointed out in the statute : for example, pledges, 
 gifts, pawns, bailments, and other transfers and aliena- 
 tions which might be effected by mere delivery and with- 
 out the use of any writing, assignment, or conveyance. 
 Other species of conveyances were excluded. Hence it 
 
 1 Horwitz v. Ellinger, 31 Md. 504; Means v. Dowd, 128 U. S. 278, 281, 
 
 Pike v. Bacon, 21 Me. 280; Covanho- 9 S. C. Rep. 65. Compare Buntlej v. 
 van v. Hart, 21 Pa. St. 500. Kingman, 152 U. S. 535, II S. C. Rep. 
 
 - 22 Wall. 523. G88. 
 
 4 73 Mo. 151.
 
 28 NO DEFINITION OF FRAUD. §13 
 
 was held that a charge to a jury to the effect that the 
 defendant had fraudulently disposed of his property was 
 not supported by proof that he had executed a fraudulent 
 mortgage. 
 
 § 13. No definition of fraud.— Fraud is as difficult to de- 
 fine ' as it is easy to perceive. Courts of equity have skil- 
 fully avoided giving a precise and satisfactory definition 
 of it, 2 so various is it in its form and color. 3 It is some- 
 times said to consist of " any kind of artifice employed 
 by one person to deceive another," conduct that operates 
 prejudicially on the rights of others, 41 or withdraws the 
 property of a debtor from the reach of creditors. 5 But 
 the term is one that admits of no positive definition, and 
 cannot be controlled in its application by fixed and rigid 
 rules. Fraud is " so subtle in its nature, and so protean 
 in its disguises, as to render it almost impossible to give 
 a definition which fraud would not find means to evade." 6 
 It is to be inferred or not, according to the special circum- 
 stances of every case. Whenever it occurs it usually 
 vitiates the transaction tainted by it. 7 "Fraud cuts down 
 
 1 See Green v. Nixon, 23 Beav. 530; Tenner v. Dickey, 1 Flippin, 36. 
 Reyni'll v. Sprye, 1 De G., M. & G. Undue influence. — So what consti- 
 691. Fraud may be passive as well as tutes undue influence is a question de- 
 active. Holt v. Creamer, 34 N. J. Eq. pending vipon the circumstances of 
 189. each particular case. It is a species of 
 See Beach on Contributory Neg., constructive fraud which the courts 
 §2. Compare Chesterfield v. Janssen, will not undertake to define by any 
 1 Atk. 852; Shoemaker v. Cake, 83 fixed principles, lest the very defini- 
 Va. 5, 1 S. E. Rep. 387. tion itself f urn i si 1 a finger-board point- 
 Williams v. Harris, 4 So. Dak. 26, ing out the path by which it may be 
 ■">1 N. \V. Rep, 926. evaded. The following principle, we 
 
 4 Bunnv. Ahl, 29 I'a. St. 390. think, is sound, both in law and 
 
 McKibbin v. Martin, 64 Pa. St. 356. morals, and though a departure from 
 
 ' Shoemaker v. Cake, 83 Va. 5, 1 S. the former rule, is sustained by the 
 
 E. Rep. 887. En Jewell v. Knight, 123 more modern authorities. When one 
 
 U. S. 482, the court saj " The question living in illicit sexual relations with 
 
 <-f fraud or no fraud is one necessarily another, makes a large gift of bis 
 
 compounded of fact and of law." property to the latter, especially in
 
 § 13 NO l'l.l INN [( '\ I U FRA1 D. 29 
 
 everything." " Fraud," said De Grey, C. J., " is an 
 extrinsic, collateral act, which vitiates the most solemn 
 proceedings of courts of justice. Lord Coke says it 
 avoids all judicial acts, ecclesiastical or temporal." ' It 
 is the judgment of law on facts and intents.-' Its exist- 
 ence is often a presumption of law from admitted or 
 established facts, irrespective of motive, and too strong 
 to be rebutted. 8 "Fraud," said Story, J., "will vitiate 
 any, even the most solemn transactions; and an asserted 
 title to property, founded upon it, is utterly void." 4 
 11 Fraud is always a question of fact with reference to the 
 intention of the grantor. Where there is no fraud there 
 is no infirmity in the deed. Every case depends upon 
 its circumstances, and is to be carefully scrutinized. But 
 the vital question is always the good faith of the trans- 
 action. There is no other test." 5 Fraud does not con- 
 sist in mere intention, but in intention carried out by 
 hurtful acts. 6 " Fraud or no fraud is generally a question 
 of fact to be determined bv all the circumstances of the 
 
 cases where the donor excludes the ' 2 Pettibone v. Stevens, 15 Conn. 26 ; 
 
 natural objects of his bounty, the Sturtevant v. Ballard, 9 Johns. (N.Y.) 
 
 transaction will be viewed with such 342; Otley v. Manning, 9 East, 64; 
 
 suspicion by a court of equity as to Morgan v. Elam, 4 Yerg. (Tenn. I V-> ; 
 
 cast on the donee the burden of prov- Worseley v. Demattos, 1 Burr. 467. 
 
 ing that the donation was the result of 3 Belford v. Crane, 16 N. J. Eq. 
 
 free volition, and was not superin- 265. 
 
 duced by fraud or undue influence. * United States v. Amistad, 15 
 
 See Shipman v. Furniss, 69 Ala. 555, Peters, 594. 
 
 and cases cited, 44 Am. Rep. 528, and 5 Per Swayne, J., Lloyd v. Fulton, 
 
 note ; Leighton v. Orr, 44 Iowa, 679 ; 91 U. S. 485. 
 
 Dean v. Negley, 41 Pa. St. 312. Williams v. Davis, 69 Pa. St. 28 ; 
 
 'Rex v. Duchess of Kingston, 20 see Reilly v. Barr, 34 W. \a. 95, 11 S. E. 
 
 How. St. Tr. 544, 2 Smith's L. C. 687. Rep. 750. The fraud against which a 
 
 See Brownsword v. Edwards, 2 Ves. bankruptcy discharge is not a defense 
 
 Sen. 246 : Meddowcroft v. Huguenin, is "positive fraud, or fraud in fact 
 
 4 Moo. P. C. 386; Perry v. Meddow- involving moral turpitude or inten- 
 
 croft, 10 Beav. 122: Harrison v. tional wrong, as does embezzlement, 
 
 Mayor etc, of Southampton, 4 De G., and not implied fraud or fraud in 
 
 M. & G. 137; Gill v. Carter, 6 J. J. law." Ames v. Moir, 138 Q. S. 311 : 
 
 Marsh (Ky.) 484; Hal^v. Hall, 1 Gill Noble v. Eammond, 129 D". S. 69. 
 (Md.) 391 ; WilsoD v. Watts, 9 Md. 356.
 
 30 NO DEFINITION OF FRAUD. £ 13 
 
 case." 1 Direct proof of positive fraud in the various 
 kinds of covinous alienations which we are to discuss, is 
 not, as we shall presently see, generally attainable, nor 
 is it vitally essential. The fraudulent conspirators will 
 not be prompted to proclaim their unlawful intentions 
 from the housetops, or to summon disinterested parties 
 as witnesses to their nefarious schemes. The transac- 
 tion, like a crime, is generally consummated under cover 
 of darkness, with the safeguards of secrecy thrown about 
 it. Hence it must be scrutinized and judged by all the 
 surrounding circumstances of the case. The evidence is 
 "almost always circumstantial. Nevertheless, though 
 circumstantial, it produces conviction in the mind often 
 of more force than direct testimony."- In such cases, 
 where fraud is in issue, " the field of circumstances ought 
 to be very wide." 3 From the very nature of the case it 
 can rarely ever be proved otherwise than by circumstan- 
 tial evidence. 4 And if the facts and circumstances sur- 
 rounding the case, and distinctly proven, are such as 
 would lead a reasonable man to the conclusion that fraud 
 in fact existed, this is all the proof which the law re- 
 quires. 5 It may be observed that there can be no fraud 
 unless there exist claims and rights which can be delayed 
 and hindered, and which, but for the fraudulent convey- 
 ance, could be asserted. The law takes no cognizance of 
 fraudulent practices that injure no one. Fraud without 
 injury will not furnish a cause of action. Unless these 
 
 1 Per Hunt. J., Humes v. Scruggs, Dec. (N.Y.)535; Tumlinv. Crawford, 
 
 94 U. s. 22 28. Bee McKibbin v. -Mar- Gl Ga. 128 ; Engraham v. Pate, 51 Ga. 
 
 tin. 64 Pa. st. 356 ; Knowlton v. Mish, 587. 
 
 8 Sawyer, 627. 3 Engraham v. Pate, 51 Ga. 537. 
 
 See Kempner v. Churchill, 8 Wall. 4 See Jewell v. Knight, 123 U. S. 
 
 Newman v. Cordell, 48 Barb. 426, 8 S. C. Rep. 193. 
 
 (N. Y.) 156; Babcockv. Eckler,24 N. B Lockhard v. Beckley, 10 W. 7a. 
 
 Harnett \. Dundass, I Pa. St. 87: White v. Perry, 14 W. Va. 86. 
 181 . Warner v. Blakeman, I A.bb. A.pp.
 
 §14 RESTRAINTS UPON ALIENATION. J! 
 
 elements co-exist, the courts are powerless to render any 
 relief. 1 
 
 §14. Restraints upon alienation.— A conveyance as re- 
 gards real property may be defined to be " the transfer of 
 the title of land from one person, or class of persons, to 
 another," 2 or as "a deed which passes and conveys land 
 from one man to another." 3 The usual incident of property 
 of every kind owned or possessed by persons sui juris is 
 the power of alienation ; generally speaking, every man 
 may in theory of law do what he pleases with that which 
 is his own. 4 Almost the sole remaining restraint upon the 
 power of alienation of land is that which adjudges void 
 conveyances of real property held adversely by a third 
 party at the date of the conveyance. Statutes adjudging 
 such conveyances void " were originally introduced partly 
 upon the theory that it would be dangerous to permit the 
 transfer of disputed or ' fighting' titles, lest powerful and 
 influential persons might purchase and use such titles as 
 a means of oppressing poor people." 5 But these statutes 
 
 •Fellows v. Lewis, 65 Ala. 354; Miles, 23 Wis. 164; Murphy v. Crouch, 
 
 Castle v. Palmer, 6 Allen (Mass.) 401; 24 Wis. 365; Succession of Cotting- 
 
 Legro v. Lord, 10 Me. 161; Foster v. ham, 29 La. Ann. 669. Compare Getz- 
 
 McGregor, 11 Vt. 595; Danforth v. ler v. Saroni, 18 111. 511; Currier v. 
 
 Beattie, 43 Vt. 138; Crummen v. Ben- Sutherland, 54 N. H. 475; Huey's \\>- 
 
 net, 68 N. C. 494: Sears v. Hanks, 14 peal, 29 Pa. St. 219. See §£ 46-48. 
 
 Ohio St. 298; Vaughan v. Thompson, 2 Klein v. McNamara, 54 Miss. 105. 
 
 17 111. 78 ; Muller v. Inderreiden, 79 111. 3 Brown v. Fit/.. 13 X. II. 285. 
 
 382; Anthony v. Wade, 1 Bush. (Ky.) "There is no magical meaning in the 
 
 110; Morton v. Ragan, 5 Bush. (Ky.) word 'conveyance;' it denotes an in- 
 
 334; Lishy v. Perry, 6 Bush. (Ky.) 515; strument which carries from one per- 
 
 Kuevan v. Specker, 11 Bush (Ky.) 1; son to another an interest in land." 
 
 Vogler v. Montgomery, 54 Mo. 577; Lord Cairns, L. ('., in Credlandjv. 
 
 Smith v. Rumsey, 33 Mich. 183; Hugu- Potter. L. R. 10 Ch. App. 12. 
 
 nin v. Dewey, 20 Iowa, 368; Edmonson 4 See § 52. 
 
 v. Meacham, 50 Miss. 34; Wood v. 5 Sedgwick & Wait on Trial of Title 
 
 Chambers, 20 Tex. 247; McFarland v. to Land (2d ed.), § 190. See Sedgwick 
 
 Goodman, 6 Biss. Ill; Cox v. Wilder, v. Stanton, 11 X. Y. 295; Urary v. 
 
 2 Dill. 45; .Smith v. Kehr, 2 Dill. 50; Goodman, 22 X. Y. L77; McMahan v. 
 
 Dreutzer v. Bell, 11 Wis. 114; Pike v. Bowe, 114] Mass. 145; Humbert; v.
 
 32 RESTRAINTS UPON ALIENATION. § 14 
 
 are being rapidly abolished, circumvented, or ignored as 
 impracticable and unnecessary in this country, and even 
 this restraint upon alienation will soon be wholly super- 
 seded. 1 The restriction which we are about to consider 
 upon a debtor's power of effectual alienation of property 
 at the expense of his creditor is one that has existed 
 from time immemorial, and which will not outlive its use- 
 fulness so long as people are dishonest or inclined to be 
 generous before they are just. The claims of creditors, 
 it may be observed, rest upon legal obligations higher 
 than the demands of affection or generosity, commendable 
 as a response to these may be when no duties which the 
 law declares paramount intervene. 2 Creditors, as we have 
 said, have an equitable interest for the payment of their 
 claims in their debtor's property, or in " the means he has 
 of satisfying their demands," 3 and there is in our juris- 
 prudence a clear restraint upon the debtor's right of 
 alienation, where it is attempted to be exercised for the 
 purpose of hindering, delaying, or defrauding his creditors, 
 or defeating their lawful right to subject his property by 
 legal process to the satisfaction of their lawful demands. 
 The cardinal principle running through all such cases is, 
 that the property of the debtor shall not be diverted from 
 the payment of his debts, to the injury of his creditors by 
 means of the fraud. 4 The law does not restrain a man's 
 dominion over his own property so long as he acts with 
 
 Trinity Church, 24 Wend. (N. V.) W. Rep. 732, the court say: " But 
 
 611; Blatter of Department of Parks, when a debtor lias incurred debts on 
 
 7:; N. Y. 560; Dawley v. Brown, 7!) the strength of his being the owner 
 
 N. Y. 390; Williams v. Rawlins, 33 of certain property, his creditors have 
 
 Ga. 117. an equitable claim thereon, and may 
 
 [bid. insist that lie use ins property honestly 
 
 Potter v. Gracie, 58 Ala. 303; and fairly, ami without any intention 
 
 Sherman v. Barrett, 1 McMull. (8. C.) of hindering and delaying them in the 
 
 Law 117. collection of their claims." 
 
 •Seymour \. Wilson, L9 N. Y. 418; «Clements v. Moore, (i Wall. 812- 
 
 In Beels \. Plynn, 28 Neb. 580, H N. TlM.nii.kin> v. Sprout, 55 CaL 36.
 
 §14 RESTRAINTS UPON ALIENATION. 33 
 
 fairness and good faith; but it avoids all fraudulent 
 alienations devised to secure property from the pursuit of 
 his creditors ; it is fraudulent to defeat them by a reserva- 
 tion of benefit to himself; it is equally fraudulent to de- 
 feat them by benefactions conferred upon others. 1 
 
 " The current of law," says Professor Gray, 2 " has for 
 centuries been in favor of the removal of old restraints on 
 alienation ; in favor of the disallowance of new ones ; and 
 especially in favor of compelling a debtor to apply to his 
 debts all property which he could use for himself or give 
 at his pleasure to others. The legislatures and the courts 
 have co-operated to this end. Family and ecclesiastical 
 pride, natural dishonesty, and narrow precedents have 
 been formidable obstacles to this movement, but its general 
 success has been unmistakable." The debtor must devote 
 all his property absolutely to the payment of his debts ; 
 reserve no control for himself; 5 provide for no benefit 
 to himself, 4 other than what may result from the payment 
 of his debts ; impose no condition upon the right of the 
 creditors to participate in the fund ; authorize no delay 
 on the part of the trustee. 5 A debtor may be said to sus- 
 tain two distinct relations to his property : that of owner 
 and quasi trustee for his creditors. As owner he may 
 contract debts to be satisfied out of his property, create 
 liens upon it, and sell or give it to others at pleasure, and, 
 as we shall presently see, so far as he is personally con- 
 cerned, he will be bound by his own acts. The law, how- 
 ever, lays upon him an obligation to pay his debts, and in 
 
 •Lockhard v. Beckley, 10 W. Va. 436; Fisher v. Henderson, 8 N. B. K 
 
 96; Hunters v. Waite, 3 Gratt. (Va.) 26. 175; .Means v. Dowd, 128 O. S. 381, 9 
 
 2 Restraints on the Alienation of S. C. Rep. 65. 
 
 Property, by John Chipman Gray, *See Lukins v. Ainl, 6 Wall. 79; 
 
 Esq., Story Professor of Law in Har- Wooten v. (lark. 28 Miss. 75; Arthur 
 
 Sard University. v. Com. & R. Bank, IT Mi-s. :;'.il ; 
 
 3 West v. Snodgrass, 17 Ala, 554; Towle v. Hoit, 11 N. H. 61. 
 
 Riggs v. Murray, 2 Johns. Ch. (N. Y.) 5 01iver I <& Co.'a Bank v. Tal- 
 
 565; Donovan v. Dunning, 69 Mo. cott, 19 N. V. 148.
 
 J4 FRAUDULENT CONVEYANCES. § IS 
 
 behalf of his creditors holds him to the exercise of good 
 faith in all transactions relating to the fund upon which 
 they necessarily depend for payment. The debtor, there- 
 fore, cannot be permitted to create fictitious debts, or to 
 do any of the acts specified mala fide to the prejudice of 
 his creditors. 
 
 ^ 15. Fraudulent conveyances — Characteristics and 
 classes. — A fraudulent conveyance may be defined to be 
 a conveyance the object, tendency, or effect of which is 
 to defraud another, or the intent of which is to avoid some 
 duty or debt due by or incumbent upon the party making 
 it. 1 As was said by Lord Mansfield in Cadogan v. Ken- 
 nett: 2 "The question in every case is, whether the act 
 done is a bona fide transaction, or whether it is a trick and 
 contrivance to defeat creditors." The same test has been 
 referred to as decisive by Mr. Justice Story 3 and Chief- 
 Justice Marshall. 4 As we shall presently see, to consti- 
 tute such a disposition of property, three elements must 
 concur — first, the thing disposed of must be of value, out 
 of which the creditor could have realized all or a portion 
 of his claim ; second, it must be transferred or disposed of 
 by the debtor ; and third, this must be done with intent to 
 defraud. 5 Stated in another form : in order to bring a 
 
 Si • 3 K< Qt's I "in. 440 . J M. 402. 4 Unite! States v. Hooe, 3 Cranch, 
 " One of the suresl fcesteof a fraudu- 73. "The test as to whether aeon- 
 lent conveyance is thai it reserves to veyance is fraudulent or void as to a 
 the grantor an advantage inconsistent creditor is, dors it binder him in en- 
 witb its avowed purpose, or an un- forcing • liis deht? Does it deprive him 
 usual indulgence." Thompson v. of aright which would be legally ef- 
 FniT. 57 Miss. 484; see Bent/, v. fective if the conveyance or device 
 EJockey, 69 Pa. St. ?i ; Edwards had no! been resorted to?" Wagner 
 v. Stinson, 59 Ga, 443; Mitchell v. v. Smith, 13 B. J. Lea (Tenn.) 569. 
 Stetson, 64 Ga. 143. Such, for in- Hoyl v. Godfrey, 88 N. Y. 669. 
 stance, as a support. Graves v. Bl<>n- S<-<- I'lornne Sewing Machine Co. v. 
 dell, 70 Me. 194; Benry v. Binman, Zeigler, 58 \la. 224; Blake v. Bois- 
 25 Minn. 199; Young v. Beermans, joli, 51 Minn. 296,53 X. W. Rep. 637. 
 66 N. Y. 374. See Baldwin v. Rogers, 29 Minn. 544, 
 »wp. 434. 11 N. w. Rep. 77. See § 23. 
 I (j, Jur. .' 353.
 
 § 15 FRAUDULENT CONVEX \\( IS. 35 
 
 case within the terms of the statute, there must exist 
 a creditor to be defrauded, a debtor intending to defraud, 
 and a conveyance of property which is appropriable by 
 law to the payment of the debt due. 1 Usually, to avoid 
 the transaction there must be some interest in the prop- 
 erty left in the debtor ;~ some reservation inconsistent 
 with a true sale ; or some hiding or cloaking of the 
 surplus so as to cover it up for the benefit of the 
 debtor or his family. 3 Whether a conveyance be 
 fraudulent or not, as against creditors, depends on 
 whether it was made on good consideration and 
 bona fide. It is not enough that it be on good con- 
 sideration or bona fide; it must be both. If it be 
 defective in either particular, though good between the 
 parties and their representatives, it is voidable as to 
 creditors. 4 It has been observed that to avoid a fraud- 
 ulent transfer three things are necessary : Fraud on the 
 part of the vendor ; fraud on the part of the vendee ; and 
 an injury to the party complaining. 5 This, as we shall 
 see, is too general a statement, for in certain cases of 
 voluntary alienations proof of actual participation in the 
 fraud by the vendee is not essential to annul the trans- 
 action. Again, these covinous alienations with respect 
 to the rights of the creditors, existing and subsequent, 
 and the character of the debtor's interest, are divisible 
 into three classes. (1). Where a debtor conveys a title 
 in fraud of creditors. (2). Where a person not indebted 
 alienates property with the intention to defraud future 
 creditors. (3). Where the property is paid for by the 
 
 1 O'Connor v. Ward, 60 Miss. 1036. Monell, 19 Hun (N. Y.)362 : Young \ 
 
 2 Means v. Dowd, 128 U. S. 281, 9 Willis, 82 Va. 396. 
 
 S. C. Rep. 65 : Young v. Willis, 82 Va. * Randall v. Vx l, 30 N. J. Eq 
 
 296 ; . McCormick v. Atkinson, 78 Va. 358; 1 Story's Eq. Jur. : 353 . Sayre v. 
 
 8; Wray v. Davenport, 79 Va. 19. Fredericks, L6 X. J. Eq. 205; Smith 
 
 3 See Hobbs v. Davis, 50 Ga. 214; v. Muirheid. 34 X. J. Eq. 6. 
 
 Price v. Pitzer, 44 Md. 527; Todd v. 5 Guidry v. Grivot, 2 Martin X. s. 
 
 (La.) 13
 
 6 STATUTES DECLARATORY OF THE COMMON LAW. § 16 
 
 debtor, but the conveyance is taken in the name of a 
 third part)'. Dillon, J., observed: "Any instrument is 
 fraudulent which is a mere trick or sham contrivance, or 
 which originates in bad motives or intentions, that is 
 made and received for the purpose of warding off other 
 creditors." 1 In another case ~ this language may be 
 quoted : " Whether the contract be oral or in writing ; 
 whether executed by the parties with all the solemnities 
 of deeds by seal and acknowledgment ; whether in form 
 of the judgment of a court, stamped with judicial sanc- 
 tion, or carried out by the device of a corporation 
 organized with all the forms and requirements demanded 
 by the statute in that regard, if it be contaminated with 
 the vice of fraud the law declares it to be a nullity. 
 Deeds, obligations, contracts, judgments, and even cor- 
 porate bodies may be the instruments through which 
 parties may obtain the most unrighteous advantages. 
 All such devices and instruments have been resorted to 
 to cover up fraud, but whenever the law is invoked all 
 such instruments are declared nullities ; they are a perfect 
 dead letter ; the law looks upon them as if they had never 
 been executed. They can never be justified or sanctified 
 by any new shape or cover, by forms or recitals, by cov- 
 enants or sanctions which the ingenuity, or skill, or 
 genius of the rogue may devise. - ' In a case before the 
 Supreme Court of Maine it is said that "a fraudulent 
 transfer, however perfect in form, is void " as to creditors. 3 
 
 § 16. Fraudulent conveyances at common law — Statutes 
 declaratory.— By the rules of the common law all convey- 
 ances made in fraud of creditors were regarded as voida- 
 ble at the instance and suit of such creditors. 4 The 
 
 Bughes v. Cory, 20 Iowa, 105. 'See notes t<> Twyne's Case (8 
 
 Booth v. Bunce, 38 N Y". 156. Rep. 80), 1 Smith's Leading Cases 1. 
 
 'Skowhegan Bank v. Cutler, 4!) continued from 186<j to 1879, in 18 
 
 Me. 8 American Law Register N. S. 187;
 
 c? 1 6 STATUTES DECLARATORY OF THE COMMON LAW. 
 
 37 
 
 famous statutes of Elizabeth, to be presently considered, 
 avoiding fraudulent conveyances, were merely declaratory 
 of the common law j 1 the same result would have been 
 worked out without the aid of the statutes. 2 The stat- 
 utes were not necessary to this result ; :f but are to be re- 
 ceived when such transfers are brought in question only 
 as a true and accurate declaration of the common law.' 
 
 Cadogan v. Kennett, 2 Covvper, 432 ; 
 Curtis v. Leavitt, 15 N. Y. 124 ; Cle- 
 ments v. Moore, 6 Wall. 299, 312 ; Nel- 
 lis v. Clark, 20 Wend. (N. Y.) 27; 
 Black man v. Wheaton, 13 Minn. 326 ; 
 Stoddard v. Butler, 20 Wend. (N. Y.) 
 516 ; Clark v. Douglass, 62 Pa. St 416 ; 
 Brice v. Myers, 5 Ohio, 121 ; Baker v. 
 Humphrey, 101 U. S. 499; Hamilton 
 v. Russel, 1 Cranch, 310. In Califor- 
 nia a sale of this character is held to 
 be absolutely void. Mason v. Vestal, 
 88 Cal. 396,26Pac. Rep. 213; Tapscott 
 v. Lyon, 103 Cal. 310, 37 Pac. Rep. 225. 
 
 1 Clements v. Moore, 6 Wall. 312 ; 
 Davis v. Turner, 4 Gratt. (Va.) 429. 
 See §§ 18-21. 
 
 2 Cadogan v. Kennett, 2 Cowp. 432. 
 
 3 Baker v. Humphrey. 101 U. S. 
 499 ; Clements v. Moore. 6 Wall. 299. 
 
 4 Clark v. Douglass, 62 Pa. St. 416 ; 
 Rickards v. Attorney Genl., 12 CI. & 
 F. 44. See Barton v. Vanheythuysen, 
 11 Hare, 126-132 ; Ryall v. Rolle, 1 
 Atk. 178 ; TJtterson v. Vernon, 3 T. It. 
 546. In Gardner v. Cole, 21 Iowa, 
 209, Dillon, J., after remarking that 
 the statutes 13 Eliz. and 27 Eliz. had 
 never been legislatively re-enacted in 
 Iowa, said : " But antedating as these 
 statutes do the settlement of this 
 country, and being mainly, if not 
 wholly, declaratory of the common 
 law, which sets a face of flint againsl 
 frauds in every shape, they constitute 
 the basis of American jurisprudence 
 on these subjects, and are, in this 
 State, part of the unwritten law." 
 In McClellen v. Pyeatt, 32 U. S. App. 
 
 104, 107, Sanborn, J., says : "On Maj 2, 
 1890, then, for the firsl time in tin 1 
 Indian Territory, the law declares 
 that a voluntary conveyance bj a 
 debtor to delay or defraud his credit- 
 ors ' shall be void.' In the absence 
 of such a statute it was perfectly com- 
 petent for an insolvent debtor to give 
 his property to his wife or to his friend, 
 and thus to deprive his creditors of an 
 opportunity to enforce the collection 
 of their claims from any of his prop 
 erty upon which they had fasti ned no 
 liens. The debtor's right of disposi 
 tion was unrestricted in tins respect, 
 and it was undoubtedly the frauds 
 that this condition of the law per- 
 mitted that originally induced the 
 enactment of the statute 13 Elizabeth 
 in England, and the adoption of the 
 provisions of that statute in the vari- 
 ous States of this Nation." Certainly 
 this statement ignores the settled doe- 
 trine that the statute of Elizabeth is 
 merely declaratory of the common 
 law, and that the same result could 
 have been worked out without the 
 enactment of this famous statute. 
 Experience has shown that the pro 
 mulgation by statutory enactment of 
 a well formulated principle of the 
 common law has a salutary influence 
 in enforcing an observance of what 
 was theretofore the unwritten law. 
 Perhaps it may he argued in the case 
 just quoted that the common law did 
 prevail in the Indian Territory, but 
 the conclusion of the COUrl is not 
 founded upon that theory.
 
 38 STATUTES DECLARATORY OF THE COMMON LAW. § 16 
 
 Lord Coke 1 comments on the word "declare" in the 
 statute as showing that this was the case, and Lord 
 Mansfield, in Cadogan v. Kennett,'-' said that " the prin- 
 ciple and rules of the common law, as now universally 
 known and understood, are so strong- against fraud in 
 every shape, that the common law would have attained 
 every end proposed by the statutes 13 Eliz. c. 5 and 27 
 Eliz. c. 4." 3 And Chancellor Kent asserted that the 
 " statute of Elizabeth " was " only in affirmance of the 
 principles of the common law." 4 This feature of our 
 jurisprudence is of the highest importance, and creditors 
 are justified in invoking it in cases where it is sought to 
 defeat their claims as not coming exactly within the pre- 
 cise wording of the statute avoiding a particular kind of 
 transfer. The flexible principles of the common law sup- 
 plement and support the technical framework of the 
 statute, and constitute the deep and broad foundation 
 upon which the creditor's rights are founded. The mere 
 omission of a provision embracing "goods, chattels, and 
 things in action," from a section of the statute declaring 
 void conveyances and assignments of estates or interests 
 in land, made with intent to hinder, delay, or defraud 
 creditors, will not be construed to be a repeal of the 
 common-law rule which renders a conveyance of goods 
 and chattels, made with such intent, fraudulent and void 
 as to creditors. 5 In Fox v. Hills, the statute concern- 
 ing fraudulent conveyances was construed not to compre- 
 hend claims founded on tort, but it appearing that a vol- 
 
 1 Co. Litt. 76a, 290b; Twyne's Case, equity is that a provision lor die wife, 
 
 3 Rep. 82b (2 < Soke, 219). contrived t<> conceal the means of the 
 
 ■.* Cowp. 434 husband from his creditors by placing 
 
 S.c Clements v. Moore, 6 Wall, the ostensible title in her, though not 
 
 299 , Staiin v. Kelly, ss N. V. 421. within the statute of Iran. Is, is void as 
 
 * Sands v. Cod wise, 4 Johns. (N. Y.) to creditors, by the unwritten law." 
 
 508 1 Am. Dee. 313. Bernheim v. Beer, 56 .Miss. 151. 
 
 Blackman v. Wheaton, 13 .Minn. 6 1 Conn. 298. 
 331. "The principle of the courl of
 
 § l6 STATUTES DECLARATORY OF THE COMMON LAW. 39 
 
 untary deed had been given to avoid such a claim, the 
 instrument was promptly adjudged void at common law 
 as to the creditor. In Lillard v. McGee, 1 which was a 
 suit to set aside a conveyance at the instance of a creditor 
 whose claim was a judgment for damages in an action of 
 slander, the court said : " Fraud is one of the main pillars 
 of the jurisdiction of a court of equity, and there is no 
 question of its competency, prior to the statute, to give 
 relief in a case of this sort. Now as the statute is made 
 in affirmance, not in derogation of the common law, it 
 cannot have the effect of taking from a court of equity its 
 jurisdiction ; for it is a settled rule that an affirmative 
 statute does not repeal the common law." 
 
 "The common law of England," 3 says Roberts, 
 " abhors every species of covin and collusion ; but being 
 tender of presuming fraud from circumstances, statutes 
 have been specially framed to suit the exigencies of the 
 times, 3 which are as fertile in the artifices of concealment 
 as in the opportunities of deceit. It was the prevention 
 and not the punishment of fraud in which the common 
 law was defective, for there is no instrument or act which 
 is not liable by the law of this country to be rendered 
 absolutely void by clear and explicit evidence of fraud- 
 ulent intention. So general, indeed, is the condemnation 
 of all fraudulent acts by the law of England, that a 
 fraudulent estate is said, in the masculine language of 
 the books, to be no estate in the judgment of the law," 
 
 These words are employed in Alabama: "The right 
 of the creditor to subject property of his debtor, fraud- 
 ulently conveyed, is founded in that principle of the 
 common law which enjoins integrity as a virtue para- 
 mount to generosity." 4 
 
 1 4 Bibb (Ky.) 1G6 temporibus sunt inhonesta, Cic. de < >il\ 
 
 2 Roberts on Fraudulent Convey- lib. 3. 
 
 ances (ed. 1807), p. 120. 'Planters & Merchants' Bank v. 
 
 3 Qute natura videnturhonestaesse, Walker, 7 Ala. 946.
 
 40 COVINOUS TRANSFERS OF CHOSES IN ACTION'. § 17 
 
 § 17. Covinous transfers of choses in action. — By the law 
 of England, before the American Revolution, as estab- 
 lished by decisions of Fortescue, M. R., Lord Hardwicke, 
 and Lord Northington, fraudulent conveyances of choses 
 in action, though not specified in the statute, were void- 
 able equally with transfers of tangible assets, but from 
 the nature of the subject-matter the remedy of the credit- 
 ors must be sought in equity. 1 
 
 Gray, C. J., in the opinion in Drake v. Rice,~ says: 
 "Of the only case before our Revolution cited in the 
 learned argument for the claimant, we have but this brief 
 note : ' A man, being much in debt, six hours before his 
 decease gives ^600 for the benefit of his younger children ; 
 this is not fraudulent as against creditors ; though it 
 would have been so of a real estate, or chattel real.' 3 
 The report, having been published in 1740, cannot have 
 been unknown to the eminent English judges who made 
 the decisions already cited ; and, as observed by Lord 
 Redesdale, the book is anonymous and of not much 
 authority. 4 The opinions of the English and Irish 
 courts of chancery since our Revolution, cited for the 
 claimant, cannot outweigh the cases above referred to, as 
 evidence of the law of England at the time of the sepa 
 ration of the colonies from the mother country. In the 
 case at bar, it is agreed that the law of New York 
 respecting fraudulent conveyances is the same as the 
 common law and the law of Massachusetts ; and that by 
 the law of New York choses in action, although they 
 
 ■Drake v. Rice, 130 Mass. 410; 18 N. H. 109 ; Sargent v. Salmond, 27 
 
 Taylor v. Jones, 2 Atk.600; King v. Me. 539. See § 33, and cases cited. 
 
 Dupine, 2 \\k. 608, note: Horn v. * 130 Mass. U3. 
 
 Horn, Ajnbler, 79; Etyall \. Rolle, 1 Duffin v. Furness. Sel. ("as. Ch. 
 
 AiL. 166, 1 Ves. Sen. 348; Partridge 216. 
 
 \. Qopp, 1 Eden, 163, Aml.l. 596; » Barstow v. Kilvington, 5 Ves. 593, 
 
 i Hoffman, 1 Johns. Ch. 598; Hovenden v. Lord A.nnesley, 2 
 
 (N. Y 150; Hadden v. Spader, 20 Sch. & Lef . 607, 634. 
 Jol,,,-, (N. Y.i.Vil : Abbotl v. Tenney,
 
 § 18 i .Alii \ STAT1 i i:s. 1 1 
 
 cannot be attached or levied upon, yet may, after exe< u- 
 tion issued on a judgment at law, be reached by proceed- 
 ings before a magistrate in the nature of proceedings 
 under the poor debtor acts of this commonwealth, and by 
 the appointment of a receiver to take and dispose of the 
 debtor's property." 1 
 
 § 18. Early statutes avoiding fraudulent conveyances. — 
 The widely known statute, 13 Eliz. c. 5 (1570), perpetu- 
 ated by 29 Eliz. c. 5 (1587), was not, by any means, as 
 many suppose, the first legislative attempt to formulate 
 and declare the principles of the common law on this sub- 
 ject, or to repress covinous transfers by statutory enact- 
 ment. By 3 Hen. VII. c. 4 (1487), "all deeds of gift of 
 goods and chattels made or to be made of trust to the use 
 of the person or persons that made the same deed of 
 gift," are declared "void and of none effect." And the 
 prior act of 50 Edw. III. c. 6 (1376), reads as follows : 
 " Divers people .... do give their tenements and 
 chattels to their friends, by collusion to have the profits 
 at their will, and after do flee to the franchise of West- 
 minster, of St. Martin-le-Grand of London, or other such 
 privileged places, and there do live a great time with an 
 high countenance of another man's goods and profits of 
 the said tenements and chattels, till the said cred- 
 itors shall be bound to take a small parcel of their 
 debt, and release the remnant, it is ordained and 
 assented, that if it be found that such gifts be so 
 made by collusion, that the said creditors shall have exe- 
 cution of the said tenements and chattels as if no such 
 gift had been made." The statute, 2 Rich. II., stat. 2, 
 c. 3 (1379), contained provisions on the same subject, and 
 from its recitals was evidently framed to repress the hypo- 
 
 ] See Donovan v. Finn, 1 Hopkins' especially the Learned note a< page 
 Ch. <N. Y.) 59, 14 Am. Dec. 531, 542. See § 33.
 
 EARLY STATUTES. 
 
 § 18 
 
 critical religious zeal of fraudulent debtors, 1 and to fur- 
 nish a method of substituted service of process. 2 The 
 quaint provisions of these early statutes show conclusively 
 that fraudulent conveyances are not entirely the offspring 
 of our modern civilization. Fraud, which the common 
 law so greatly-abhorred, was so much practiced by debtors 
 upon creditors in early times as to attract the attention of 
 Parliament, and to constitute a subject of frequent legis- 
 lation. " These statutes," said Lord Mansfield, " cannot 
 receive too liberal a construction, or be too much extended 
 in suppression of fraud." 3 It maybe observed in explana- 
 tion of this early legislation against fraudulent transfers 
 that these statutes were enacted to more clearly formu- 
 late the common law, with a view to suppress voluntary 
 conveyances and secret trusts made by debtors who had 
 escaped arrest for debt, or avoided service of process by 
 fleeing to sanctuaries or holy ground. The number of 
 
 1 " Item, in ease of debt, where the 
 debtors make feigned gifts and feoff- 
 ments of their goods and lands to 
 their friends and others, and after 
 withdraw themselves, and flee into 
 places of holy church privileged, and 
 there hold them a long time, and take 
 the profit of their said lands and goods 
 so given by fraud anil collusion, 
 whereby their creditors have been 
 long and yel Ik- delayed of their debts 
 and recovery, wrongfully and against 
 good faith and reason ; it is ordained 
 
 and established, That after that the said 
 
 creditors have thereof broughl their 
 writs of debt, and thereupon a capias 
 
 au aided, and the slierill' shall make 
 bis return that he hath not taken the 
 -aid persons because of sneh places 
 privileged in which they lie or shall 
 
 !»■ entered, then .... another 
 
 writ shall he granted .... that 
 
 proclamation be made openly at the 
 
 i if i he place so privileged, where 
 uch persons be entered, bj five weeks 
 
 continually, every week once, that 
 the same person be at a certain day, 
 . . . . before the King's justices, 
 and .... if the said persons called 
 come not .... judgment shall be 
 given against them upon the principal 
 
 for their default Executions 
 
 shall be made of their goods and lands, 
 being out of the place privileged, as 
 well, that is to say, of those lands and 
 goods so given by collusion, as of any 
 other out of the same franchise, after 
 that such collusion or fraud be duly 
 found in the same manner as that 
 ought to have been, if no devise bad 
 been thereof made, notwithstanding 
 
 the same devise." 
 
 2 By a Manx statute " all fraudu- 
 lent assignments, or transfers of the 
 debtor's goods or effects, shall be void, 
 and of no effect against bis just cred- 
 itors." Mills' Statute Law of Isle of 
 .Manx, p. 238. Corlett v. Radcliffe, 1 1 
 .Moo. P. C. 121-132. 
 
 s Cadogan v. Kennett, Cowp. 434.
 
 § 19 STATUTE [3 ELIZABETH. 43 
 
 these conveyances, however, was comparatively small, and 
 their appearance is said to have been spasmodic and pre 
 mature, and " far in advance of the time for their normal 
 natural development." Sanctuaries, or cities of refuge 
 for fraudulent and absconded debtors, do not seem to 
 have been wholly abolished until during the reign of 
 James I., and one such sanctuary, the noted White-friars 
 which flourished in the reign of that monarch, has been 
 immortalized by Sir Walter Scott in his " Fortunes of 
 Nigel." » 
 
 § 19. Statute 13 Eliz. c. 5, and its object. — This statute 
 was passed for the protection of creditors, and is the great 
 model which has been re-enacted in substance, or copied 
 wherever Anglican law prevails. It was, in its perfected 
 form, an offspring of the brilliant Elizabethan age, and 
 adds to the lustre of the achievements of that unsurpassed 
 period of the world's development. The leading object 
 of the statute was to prevent those collusive transfers of 
 legal ownership which place the property of a man 
 indebted out of the reach of his bona fide creditors, and 
 leave to him the beneficial enjoyment of that which ought 
 in conscience to be open to their legal remedies.' It was 
 meant to prevent deeds " fraudulent in their concoction," 
 says Lord Ellenborough/' By its provisions all convey- 
 ances and dispositions of property, real or personal, made 
 with the intention of defrauding creditors, are declared to 
 be null and void as against the creditors. 4 Mr. Reeves 
 says that several acts had been formerly passed on the 
 subject of fraudulent conveyances, "but none of them had 
 gone so far" as the statutes 13 Eliz. and 27 Eliz. "to 
 
 1 Essay by John Reynolds, Esq., on 2 Roberts on Fraudulent Convey- 
 Fraudulent Conveyances, etc., read ances, p. 554. 
 
 before New York State Bar Associa- :1 Meux v. Howell, I East, 1 I See 
 tion, Nov. 18, 1879. Moore v. Hinnant. 89 N. C. 159. 
 
 4 See Drake v. Rice, 130 Mass. 410.
 
 44 
 
 STA fUTE 13 ELIZABETH. 
 
 19 
 
 restrain these feigned gifts." 1 Mr. Justice Story observes 
 that this statute (13 Eliz.) "has been universally adopted 
 in America as the basis of our jurisprudence " upon the 
 subject. 2 It maybe found enacted almost intact in many 
 of our statute-books, and is still popularly called " the 
 statute of Elizabeth," just as statutory remedies for the 
 trial of title to real property are known by the familiar 
 title of ejectment. Professor Pomeroy says: 3 "The 
 operative statute in England, which is also the basis of 
 all legislation and judicial decision in the United States, 
 is the celebrated act 13 Eliz. c. 5." The historic name of 
 the eccentric, but fortunate, queen is constantly linked 
 with the struggles of creditors to enforce the payment of 
 honest demands. The general interpretation placed upon 
 the statute of Elizabeth is well illustrated in an import- 
 ant case in Maine, 4 in which the court say : " We derived 
 our law in relation to conveyances fraudulent as to credit- 
 ors, from the stat. 13 Eliz. c. 5, which has been adopted 
 here as common law. 5 This statute, declaring that con- 
 veyances made with intent to ' delay, hinder, or defraud 
 creditors,' shall be ' deemed and taken (only as against 
 creditors, etc.) to be clearly and utterly void, frustrate, 
 and of none effect,' has been invariably construed as 
 plainly implying that they are valid as between the par- 
 
 1 5 Reeves' Bisk Eng. Law. pp. ^44, 
 345. 
 
 '-' Story's Eq. Jur. ? 353. In Peters 
 v. Bain, 133 D. S.685, 108. C. Rep. 354, 
 Chief Justice Fuller says: "The 
 statute of Elizabeth, <•. •">. againsl 
 fraudulent conveyances has been uni- 
 versally adopted in American law as 
 the basis of our jurisprudence on thai 
 subject (Story Eq. Jur. sj 353), and 
 re-enacted in terms, or nearly so, or 
 with some change of language, l>y 
 the legislatures of the several states.'" 
 
 In Clements v. Moore, 6 Wall. 312, the 
 court say : "The statute of the 13th 
 Elizabeth has been substantially enac- 
 ted in Texas." The statutes of Eliza- 
 beth for the prevention of fraudulent 
 conveyances, are in full force in the 
 1 hstrict of Columbia, and stood with- 
 out a single amendment until Feb. 
 24,1893. Kansas City PackingCo. v. 
 Hoover, 1 I). C. Ct. Ap|). 270. 
 
 8 2 Pom. Eq. § 968. 
 
 ' Butler \. Moore, 7:5 Me. 154. 
 
 j Howe v. Ward, 1 Me. 196. 199.
 
 § 2 ° 
 
 STATUTE [3 1.1.1/ \ r,l III. 
 
 43 
 
 ties and their representatives; 1 and can be avoided only 
 by creditors on due proceedings ; ~ or their representa- 
 tives, such as assignees in bankruptcy or insolvency of 
 the grantor, 3 and the executors or administrators of grant- 
 ors since deceased whose estates have been declared 
 insolvent. 4 And notwithstanding the words ' utterly void,' 
 etc., applied to such conveyances, they are not, even as 
 to creditors, void but voidable; 5 and all the courts con- 
 cur in holding that if the fraudulent grantee convey the 
 premises to a bona fide purchaser for a valuable considera- 
 tion before the creditor moves to impeach the original 
 conveyance, the purchaser's title cannot be disturbed." 
 
 §20. Its interpretation and construction.— " Notwithstand- 
 ing," says Mr. Roberts, u these laws are greatly penal, the 
 rule still holds of p-ivino; them an extended and liberal 
 exposition." 7 Statutes in suppression of deceit and covin 
 should be equitably expounded, although they are highly 
 penal. 8 In McCulloch v. Hutchinson, 9 Sergeant, J., said : 
 
 1 Nichols v. Patten. 18 Me. 231 ; An- 
 drews v. Marshall, 43 Me. 274 ; Ben- 
 jamin on Sales, 3d Am. ed., p. 476, 
 and note. 
 
 8 Miller v. Miller, 23 Me. 22; Thorn p- 
 son v. Moore. 36 Me. 47 ; Stone v. 
 Locke, 46 Me. 445. 
 
 3 Freeland v. Freeland, 102 Mass. 
 475, 477. 
 
 4 McLean v. Weeks, 65 Me. 411, 418. 
 
 5 Andrews v. Marshall, 43 Me. 272. 
 
 6 Neal v. Williams, 18 Me. 391 ; 
 Hoffman v. Nohle. 6 Met, (Mass ) 68 ; 
 Bradley v. Ohear. 10 N. H. 477. 
 
 '• Roberts on Fraudulent Convey- 
 ances, p. 542. In hits enim quaesunt 
 favorabilia animce, quamvis sunt 
 damnosa rebus, fiat aliquando extensio 
 statuti. In Riggs v. Palmer, 115 
 N. Y. 511, Karl, J., says : " All laws, 
 as well as all contracts, may be con- 
 trolled in their operation and effect 
 by general, fundamental maxims of 
 
 the common law. No one shall l»' 
 permitted to profit by bis own fraud, 
 or to take ad vantage of his own wrong, 
 or to found any claim upon bis own 
 iniquity, or to acquire property by bis 
 own crime. These maxims are dic- 
 tated by public policy, have their 
 foundation in universal law adminis- 
 tered in all civilized countries, and 
 have nowhere been superseded by 
 statutes. They were applied in tin' 
 decision of the case of the New York 
 Mutual Life Insurance Company v. 
 Armstrong (117 U. S. 591). There it 
 wa> held that the person who pro- 
 cured a policy upon the life of another, 
 payable at bis death, and then mur- 
 dered the assured to make the policy 
 payable, could not recover thereon " 
 
 n Wimbish v. Tailbois, Plowd. < lorn, 
 59. Sec Roy v. Bishop of Norwich, 
 Hob. 75: Brice v. Myers, 5 Ohio, 128, 
 
 "7 Watts (Pa.) 435.
 
 46 
 
 STATUTE 13 ELIZABETH. 
 
 §20 
 
 " The statutes on this subject are liberally expounded for 
 the protection of creditors, and to meet the schemes and 
 devices by which a fair exterior may be given to that 
 which is in reality collusive." 1 " The statute," says Allen, 
 [., " has always had a liberal interpretation for the preven- 
 tion of frauds." 2 The law "loves honesty and fair deal- 
 ing," and " so construes liberally statutes to suppress 
 frauds, 3 as far as they annul the fraudulent transaction." 4 
 As early as Twyne's Case, 5 it was resolved that " because 
 fraud and deceit abound in these days more than in former 
 
 times all statutes made against fraud should 
 
 be liberally and beneficially expounded to suppress the 
 
 1 See Cadogan v. Kennett, 2 Cowp. 
 432 ; Gooch's Case, 5 Rep. 60 (3 Coke, 
 121) : Allen v. Rundle, 50 Conn. 31. 
 
 Young v. Heernians, 66 N. Y. 383. 
 See Pennington v. Seal, 49 Miss. 525. 
 An innocent construction of an in- 
 strument will be favored in prefer- 
 ence to one that will impute a fraudu- 
 lent intent. Roberts v. Buckley, 145 
 N. Y. 21o-224, 39 N. E. Rep. 966. 
 
 'Citing Twyne's Case, 3 Rep. 80b 
 (2 Coke, 212); Cadogan v. Kennett, 
 2 Cowp. 432-434. 
 
 4 Bishop on the Written Laws, 
 § 192. "Statutes against frauds are 
 to be liberally and beneficially ex- 
 pounded. This may seem a contra- 
 diction to the last ride [that penal 
 statutes are to be construed strictly] ; 
 mosl statutes against frauds being in 
 their consequences penal. But this 
 difference is here to be taken : where 
 
 the statute acts upon tl ffender and 
 
 inflicts a penalty, as a pillory or a fine, 
 it ie then to be taken strictly : but 
 when the statute acts upon the offense, 
 by setting aside the fraudulent trans 
 action, here it is to be construed lib- 
 erally." 1 HI. <o m . 88. See Carey v. 
 < tiles, 9 < la. 253 ; < Summing \ Fryer, 
 Dudley iCa.i 182 ; Ellis v. Whitlock, 
 10 Mo. 781. In Riggs \. Palmer, 115 
 
 N. Y. 510, 22 N. E. Rep. 188, the court 
 say : " Such a construction ought to 
 be put upon a statute as will best an- 
 swer the intention which the makers 
 had in view, for qui hceret in litera, 
 turret i» corticc." In People v. Cren- 
 nan, 141 N. Y. 241, this language is 
 used, "whatever is necessarily im- 
 plied in a statute is just as much a 
 part thereof as if written therein." 
 See People v. Utica Ins. Co., 15 Johns. 
 (N. Y.) 358. In construing statutes, 
 it is a well established rule that resort 
 must be had to the natural significa- 
 tion of the words employed, and if 
 they have a definite meaning, which 
 involves no absurdity or contradic- 
 tion, there is no room for construction, 
 and courts have no right to add or 
 take away from that meaning. Tomp- 
 kins v. Hunter. 149 N. Y. 122, citing 
 Newell v. People, 7 N. Y. 9, 97: Mc- 
 Cluskey v. Cromwell, 11 N. Y. 593, 
 mil ; People v. Woodruff, 32N.Y. 355, 
 364; Matter of Miller. 110 N. Y. 216. 
 A statute will be held to abrogate the 
 common law only in so far as the clear 
 import of the language absolutely re- 
 quires it. Fitzgerald v. Quann, 109 
 X. V. 441. 
 5 3 Rep. 82a (2 Coke, 219).
 
 §21 . STATUTE 27 ELIZABETH. 47 
 
 fraud." It may be suggested that, in construing statutes 
 to prevent frauds, suppress public wrongs, or effect a pub- 
 lic good, — objects which the law favors, — there is a pres- 
 sure toward a liberal interpretation ; but if they also 
 provide a penalty, which is a thing odious to the law, 
 there is another pressure toward the strict rule ; so the 
 balance may be in equipoise, or the one scale or the other 
 may preponderate, according to the special circumstances 
 of the case, or the views of the particular judge. 1 
 
 The provisions of the statute are considered to be so 
 plain that "he that runs may read." 3 In Federal tri- 
 bunals, and in the Supreme Court of the United States, 
 in controversies arising under this statute, involving as 
 they do, the rights of creditors locally, and a rule of 
 property, the conclusions of the highest judicial tribunal 
 of the State are accepted as controlling. 3 
 
 §21. Statute 27 Eliz c. 4. — This statute was enacted in 
 favor of purchasers, and renders void, as against subse- 
 quent purchasers of the same land, all conveyances, etc., 
 made with the intention of defeating them, 4 or contain- 
 ing a power of revocation. Mr. May observes 5 that " in 
 one respect, however, both these statutes were moulded 
 in strict conformity with the rules of the common law ; 
 for if 'simplicity was the striking feature of the common 
 
 'Compare Taylor v. United States, See Savage v. Knight, 92 N. < '. 
 
 3 How. 197; Fairbanks v. Antrim, 2 497. 
 
 N. H. 105; Abbott v. Wood, 22 Me. Peters v. Bain, 133 U. S 686, 10 S. 
 
 541; Sickles v. Sharp, 13 Jobns. (N. C. Rep. 354, citing Jaffraj y.McGehee, 
 
 Y.)497; Van Valkenburgh v. Torrey, 107 U. S. 361, 364, 2 S. < '. Rep. 361 . 
 
 7 Cow. (N. Y.) 252 In construction Lloyd v. Fulton, 91 U. S. 179, 185; 
 
 the courts will strive "to make atone- Allen v. Massey, 17 Wall. 351 
 nient and peace among the words." 4 See Anderson v. Etter, 102 lud. 
 
 It may be recalled that an assignment 120. Compare Cathcarl v. Robinson, 
 
 is to be construed like any other con- 5 Pet. 264; Pence v. (roan. 51 End. 
 
 tract. Crook v. Rindskopf, 105 N. Y. 336. 
 
 476-485, 12 N. E. Eep. 174. 5 May on Fraudulent Conveyances 
 
 (London, 1871), p. 3.
 
 48 I W \ NE'S CASE. § 22 
 
 law,' 1 it was, in an almost equal degree, the chief feature 
 of the statutes of Elizabeth, which are couched in very 
 general terms, so as to include, and allow their applica- 
 tion by the courts to any fraudulent contrivances to 
 which the fertility of man's imagination might have 
 resorted, as a means of eluding a more precise and inflex- 
 ible law." "' 
 
 § 22. Twyne's Case. y — This celebrated case is the credit- 
 or's beacon-light in suits to annul covinous transfers. 
 The decision was promulgated in i6or, thirty years after 
 the enactment of the- statute 13 Eliz. c. 5. Brilliant 
 statesmanship and diplomacy, signal success in battle 
 against threatened foreign invasion, and the birth of 
 immortal literary and dramatic productions, were not the 
 only characteristics of this fascinating period in English 
 history. Evidently covinous dispositions of property 
 were at that time beginning to attract attention and be- 
 come troublesome, for, as already shown, it was resolved 
 that " because fraud and deceit abound in these days 
 more than in former times, all statutes made against 
 fraud should be liberally and beneficially expounded to 
 suppress the fraud." It appeared, in this case, that P. was 
 
 ■Citing Sugden on Powers, Intro- any pretence, color, feigned considera- 
 
 duction, p. 1. tion, expressing of use, or any other 
 
 •As to the interpretation of these matter or thing to the contrary. By 
 statutes as applied to bona fide pur- the 27 Eliz. c. 4, conveyances made to 
 chasers, Bee Bean v, Smith, 2 Mason, defraud subsequent purchasers are 
 272, per Story.'J., reviewing Roberts declared void as to persons defrauded. 
 v. Anderson, 3 Johns. ( !h. (N. Y.) 371, In both Btatutes a penalty is provided 
 per Chancellor Kent. In Mulford v. for, which parties to such convey- 
 Peterson, 35 N. .1. Law. 133, the court ances, or such as are privy to or knpw- 
 Baid :" The statute, 13 Eliz. c. 5, makes ing of such fraud, incur, who shall 
 utterly void, frustrate, and of no ef- put in use or maintain, justify, or de- 
 fect, every feoffment, gift, grant, fend, such conveyances as made bona 
 alienation, bargain, and conveyance fide or upon good consideration." 
 
 of lands, tenements, g Is, and chat- 3 Rep. 80 (2 Coke, 212); 1 Smith's 
 
 tela, oranj of them, devised and con- Lea. Cas. 1, 18 Am. Law Reg. N. 8. 
 
 trived to delay, hinder, or defraud 137. 
 creditors, ae against such creditors,
 
 § 22 I W\ NE'S I \>i . 49 
 
 indebted to T. in ,£400, and was indebted also to C. in 
 ,£200. C. brought an action of debt against P., and pend- 
 ing the writ P., being possessed of goods and chattels of 
 the value of ,£300, secretly made 1 a general deed of gift 
 of all his goods and chattels, real and personal whatso- 
 ever, to T., in satisfaction of his debt; notwithstanding 
 which P. continued in possession of the goods, some of 
 which he sold again, sheared the sheep, and marked them 
 with his own mark. Afterwards C. had judgment against 
 P. and took out a fieri facias directed to the sheriff of 
 Southampton, who, by force of the writ, came to levy upon 
 the goods. Divers persons, by the command of T., resisted 
 the sheriff by force, claiming the goods as the goods of T. 
 by virtue of the gift ; and whether the gift, on the whole 
 matter, was a good gift, or fraudulent and void within the 
 13 Eliz. c. 5, was the question. It was determined by the 
 Lord Keeper of the Great Seal, by the Chief-Justices, and 
 by the whole Court of Star Chamber, that the gift was 
 fraudulent within the statute. And as the signs and 
 marks of fraud, it was said by the court : (1). That the gift 
 was general, without exception of the donor's apparel, or of 
 anything of necessity. (2). The donor continued in posses- 
 sion, and used the goods as his own ; and by means thereof 
 traded with others, and defrauded and deceived them. (3 ) 
 It was made in secret. (4). It was made pending the writ. 
 (5). There was a trust between the parties ; for the donor 
 possessed all, and used them as his proper goods ; and fraud 
 is always apparelled and clad with a trust, and a trust is the 
 cover of fraud. (6). The deed expressed that the gift was 
 made honestly, truly and bona fide ; et clausula- inconsueta 
 semper inducunt suspicioncm.' 1 This case is popularly 
 
 1 See Huntley v. Kingman, 152 U. Rep. 237. Lord Eldon, in Kidd v. Raw- 
 
 S. 533, 14 S. C. Rep. 688. linson, 2 Bos. <& P. 59, cited with ap- 
 
 - See Roberts on Fraudulent Con- proval from Buller'8 Nisi Prius, w here 
 
 veyances (ed. 1845), pp. 544, 545 ; Da- the following synopsis of Twyne's 
 
 vis v. Schwartz, 155 U. S. 639, 15 S. C. Case maj be found: "A., being in 
 
 4
 
 5<d twyne's CASE. § 22 
 
 regarded as the fountain from which our modern law as 
 to fraudulent conveyances (lows, and the profession fre- 
 quently refer to and draw from it in preference to select- 
 ing from the "myriad of precedents" and "single 
 instances " which financial crises and the oreed of dishon- 
 est debtors have since called into being. The leading 
 doctrine taught by this case has been practically super- 
 seded in England, but it still holds a prominent place in 
 our jurisprudence. This may be likened to the use of 
 statutory real writs in parts of the United States after 
 their complete abandonment in the mother country. 1 
 The exact point decided in Twyne's Case is that a con- 
 veyance by a debtor of tangible property, if actually 
 fraudulent, is void as to existing creditors. The impres- 
 sion that the principles of this case are sufficient to meet 
 the exigencies of our modern jurisprudence is clearly 
 erroneous. Though Twyne's Case has been characterized 
 as a " wonderful decision," and amazement has been 
 expressed that the question involved should have come 
 up for adjudication at such an early period, yet it must 
 be conceded that the facts of the case were too 
 restricted to enable the court to furnish rules suffi- 
 cient to answer all the varying imperative demands of 
 creditors at the present day. Since this great deci- 
 sion was rendered its principles have been extended, as 
 we shall presently see, to avoid covinous conveyances not 
 
 debtedtoB, hv£400, andtoC. in £200, within the proviso, for though it La 
 
 C. brings debt, and hanging the writ, made on a good consideration, yd it 
 
 A. makes ;i secrel conveyance of all is not bona fide. Bui ye1 the donoi 
 
 his goods and chattels to B. in satis- continuing in possession, is not in all 
 
 faction of Ids debt, bul continues in cases a mark of fraud; as where a 
 
 possession, and sells some, and sets donee lends Ins donor money to buy 
 
 his mark on other sheep; and it was goods, and at the same time takes a 
 
 hoi den to !»■ fraudulent within tins bill of sale of them for securing the 
 
 act; (1) because the gifl is general; money." Bull. Nisi Prius, p. 258. 
 
 -' the donor continued in possession 'See Sedg, & Wait on Trial of 
 
 and used them as his own ; (3) it was Title to Land, 2d ed<, £? 72-76, c. II. 
 made pending t he wril , and it is nol
 
 § 22 twyne's case. 51 
 
 only as to existing creditors, but in certain cases as to sub- 
 sequent creditors, 1 and even as to contingent subsequent 
 creditors ; 2 so it has been held to embrace creditors who 
 were suing the debtor for tort, :i as for slander, 1 or assault 
 and battery, 5 or the misapplication of trust moneys more 
 than fifteen years before the conveyance. The statutes 
 "are not limited in their operation by any Procrustean 
 formula." r The doctrine of the case has been enlarged 
 to cover transfers of intangible rights and choses in action, 
 such as stocks, 8 transfer of an annuity, 9 of a policy of life 
 insurance, 10 of an equity of redemption, 11 of certificates of 
 stock, 1 " of a legacy, 13 insurance premiums, 14 and all mere 
 choses in action. 15 Even an allowance for support to a wife 
 under a judgment for a divorce maybe reached by her cred- 
 itors. 10 Still Twyne's Case has taken deep hold in our law, 
 and the main principles that control the determination of 
 the different phases of fraudulent conveyances can gener- 
 ally be traced to this parent root. That the case should at 
 
 'See Laughton v. Harden, 68 Me. Hadden v. Spader, 20 Johns. (N. Y.) 
 
 212; Day v. Cooley, 118 Mass. 527. 554; Weed v. Pierce, 9 Cow. iN. Y.) 
 
 2 See Jackson v. Seward, 5 Cow. 723, per Chancellor Walworth; Ed- 
 (N. Y.) 71; Pennington v. Seal, 49 meston v. Lyde, 1 Paige (N. Y.) 641 . 
 Miss. 525; Hoffman v. Junk, 51 Wis. Beckwith v. Burrough, 14 R. I. 3(i<>. 
 614, 8 N. W. Rep. 493. See Chap. VI. ' Norcutt v. Dodd, 1 < !r. & I'M. 100. 
 
 3 See Post v. Stiger, 29 N. J. Eq. 10 Stokoe v. Cowan, 29 Beav. 637: 
 558: Weir v. Day, 57 Iowa, 87, ION. Skarf v. Soulby, 1 Macn. & (!. 364 . 
 W. Rep. 304 ; Langford v. Fly, 7 Hum. In re Trustee Relief Act, 5 DeC. & s. 
 (Tenn.) 585 ; Walradt v. Brown, 6 111. 1 ; Burton v. Farinholt, 86 N. C. 260 
 397; Gebhart v. Merfeld, 51 Md. 325: Mtna, Nat. Bank v. Manhattan Life 
 Cooke v. Cooke, 43 Md. 522; Fox v. Ins. Co., 24 Fed. Rep. 769. 
 
 Hills, 1 Conn. 295. » Sims v. Gaines, 64 Ala. 397. 
 
 4 Jackson v.Myers, 18 Johns. (N.Y.) '-Scott v. Indianapolis Wagon 
 425 ; Cooke v. Cooke, 43 Md. 531 ; Works, 48 Ind. 78. 
 
 Wilcox v. Fitch, 20 Johns. (N.Y.) 472. '• Bigelow v. Ayrault. 46 Barb. (N. 
 
 5 Ford v. Johnston, 7 Hun (N. Y.) Y.) 143. 
 
 567; Slater v. Sherman, 5 Bush (Ky.) " Mtna Nat. Hank v. United States 
 
 206. Life Ins. Co., 24 Fed. Rep. 770. 
 
 6 Strong v. Strong, 18 Beav. 408. IB Greenwood v. Brodhead, 8 Barb. 
 
 1 Beckwith v. Burrough, 14 R.I. (N. Y.) 597 ; Drake v. Rice, 130 Mass 
 
 368. 410. 
 
 8 Bayard v. Hoffman, 4 Johns. Ch. "Stevenson v. Stevenson, 34 Bun 
 
 (N. Y.) 450, per Chancellor Kent; (N. Y.) 157.
 
 5? 
 
 TWYNE S CASE. 
 
 ^ 22 
 
 this late day be so widely cited and relied upon ] is con- 
 clusive proof that it embodies a forcible exposition of 
 sound and necessary rules affecting covinous transfers, 
 which neither lapse of time nor change in circumstances 
 can supersede. The case attains the same relative promi- 
 nence as a precedent in the authorities that is accorded to 
 the statute 13 Eliz. c. 5, as a model for modern legislative 
 enactments. It seems indeed strange that so many evi- 
 dences and badges of fraud, common with us now, should 
 have been concentrated in such an early case, and should 
 have been so swiftly and skilfully detected and labeled. 
 If the facts of this case are not partially fictitious, and 
 there is little reason to credit the intimation that they are, 
 then it follows that the methods and devices of the fraudu- 
 lent debtor have undergone few alterations since this 
 remarkable decision was promulgated. 
 
 1 In Davis v. Schwartz, 155 U. S. 
 638, 15 S. C. Rep. 237, Mr. Justice 
 Brown said: 'It lias been the accepted 
 la w ever since Twyne's Case, 3 Coke, 
 80, that good faith as well as a valua- 
 ble consideration is necessary to sup- 
 port a conveyance as against cred- 
 itors. In that case Pierce, being in- 
 debted to Twyne in £400, was sued 
 by a third party for £200. Pending 
 such suit lie conveyed all his prop- 
 erty to Twyne in consideration of 
 his debt, but continued in possession, 
 sold certain sheep and set his mark on 
 others. It was resolved to lie a fraud 
 ulent gift, though the deed declared 
 that it was tnsAe bona fide. Mosf of 
 the cases illustrative of this doctrine, 
 however, have been like that of 
 Twyne, wherein a debtor, knowing 
 
 thai an execution was to he taken out 
 against him. ha'l sold his property to 
 a vendee having knowledge of the 
 
 pet-. i"i the express purpose of 
 avoiding a levy, or receiving a con- 
 sidi ration which could not he reached 
 i,\ ex< cution. In such cases the facl 
 
 that he receives a good consideration 
 will not validate the transaction, un- 
 less at least the creditor has obtained 
 the benefit of the consideration. A 
 like principle applies where a mort- 
 gage is given and withheld from 
 record in order to give the mortgagor 
 a fictitious credit. Cadogan v. Ken- 
 net t, Cowp. 432; Blennerhassett v. 
 Sherman, 10."> U. S. 117; Sayre v. 
 Fredericks, 16 X. J. Eq. 205; Sweet 
 v. Wright, 57 Iowa. 514. ION. W. Pep. 
 870; 1 Story's Eq. Juris. § 353; Klein 
 v. Hoffheimer, 132 U.S. 367, 10 S. C. 
 Rep. 130; Holt v. Creamer, 34 X. .1. Eq. 
 181; Clements v. Moore, 6 Wall. 299; 
 Wickham v. Miller, 12 Johns. (X. Y. ) 
 320; Pulliam v. Newberry, 41 Ala. 
 168: Robinson v. Holt, 39 N. H. 557. 
 In Twyne's Case, the facts that the 
 sale was accompanied by a secret 
 trust in favor of the debtor, and thai 
 the vendor remained in possession, 
 showed that it was not intended a- a 
 
 bona fide preference to the creditor, 
 hut merely as a trick to keep the prop- 
 erty away from the other creditors."
 
 CHAPTER II. 
 
 PROPERTY SUSCEPTIBLE OF FRAUDULENT ALIENATION. 
 AVAILABLE TO CREDITORS. 
 
 ASSETS 
 
 Powers, when assets for cred- 
 itors. 
 
 statutory change as to |.ow ers in 
 New York. 
 
 Cifts of small value. 
 
 Debts forgiven or canceled. 
 
 Enforcing promises of third par- 
 ties. 
 
 Tracing the fund. 
 
 Income of trust estate 
 
 Rule as to exempt property. 
 
 Fraudulent purchases of exempt 
 property. 
 
 Covinous alienations of exemp- 
 tions. 
 
 Conflicting cases. 
 
 Abandoned exemptions. 
 What cannot be reached. 
 Payments made to a debtor. 
 
 £23. Interests available — Life insurance. — Having con- 
 sidered the principles of the common law and the early 
 statutes and authorities relating- to covinous alienations, 1 
 and taken a general view of the subject, it becomes 
 necessary next to discuss the various classes of property, 
 and the rights and equitable interests of debtors, which 
 may constitute the subject-matter of fraudulent aliena- 
 tions, or which can be reached by creditors' bills or other 
 appropriate remedies, or through the instrumentality of 
 a receiver, liquidator, or assignee. We have already 
 seen that in general one of the requisites of a fraudulent 
 
 § 23. 
 
 Interests available — Life 
 ance. 
 
 insur- 
 
 g 39 
 
 24. 
 
 Tangible property and intangible 
 
 40. 
 
 
 interests. 
 
 
 
 25. 
 
 Englisb statutes and autborities. 
 
 41. 
 
 26. 
 
 Recovering improvements — 
 
 42. 
 
 
 Rents and profits. 
 
 
 43. 
 
 27. 
 
 Rule as to crops. 
 
 
 
 28. 
 
 Property substituted or mingled. 
 
 44. 
 
 29. 
 
 Estates in remainder and 
 
 rever- 
 
 45. 
 
 
 sion. 
 
 
 46. 
 
 30. 
 
 Equitable interests. 
 
 
 47. 
 
 31. 
 
 Equity of redemption. 
 
 
 
 32. 
 
 Reservations. 
 
 
 48. 
 
 33. 
 
 Choses in action. 
 
 
 
 34. 
 
 Claims for pure torts — Damages. 
 
 49. 
 
 35. 
 
 Seats in stock exebanges. 
 
 
 50. 
 
 36. 
 
 Trade-marks. 
 
 
 50a 
 
 37. 
 
 Reacbing book royalties. 
 
 
 506. 
 
 38. 
 
 Patent rights. 
 
 
 
 1 See §§ 19-22.
 
 54 INTERESTS AVAILABLE — LIFE INSURANCE. §23 
 
 transfer which will persuade the courts to interfere is 
 that the property or thing disposed of by the debtor 
 should be of some value, out of which the creditor might 
 have realized the whole or a portion of his claim. 1 Hence, 
 where a debtor canceled upon his books, without con- 
 sideration, an old account against one who was insolvent, 
 it was declared that the transaction did not amount to a 
 disposition of property with intent to defraud creditors." 
 The foundation of this ruling is self-evident. The court 
 will not interest itself in any attempt to extend relief to 
 a creditor unless its process and judgment can be ren- 
 dered practically effectual, and, as a result of its action, a 
 substantial benefit can be conferred upon the creditor. 
 If the property transferred, and sought to be reached and 
 subjected to the process of the court, is not liable to 
 execution, 3 or if the debtor has no beneficial interest in it, 
 the court will not inquire into the modes or motives of 
 its disposition. Such an inquiry would be futile. Hence, 
 it was held in Minnesota, that a conveyance of real 
 estate encumbered for more than its value would not be 
 declared void at the instance of creditors of the grantor, 
 though made with the intent to put the real estate beyond 
 their reach. 4 In Hamburger v. Grant, 5 it appeared that the 
 amount of the indebtedness to the complainant was three 
 dollars and fifty cents. In an action to cancel a fraudu- 
 lent conveyance, Kelly, J., observed : " The interposition 
 of a court of equity ought not to be asked to set aside a 
 deed on the ground of fraud for such a small sum of 
 money."' The value of the assigned property is always 
 
 L5. Compare Ithaca Gas Light Co. v. 
 
 Hoyl v. Godfrey, ss N. Y. 669. Treman, 93 N. Y. 6G0 ; Chapman v. 
 
 16. Hanker & Tradesman Pub. Co., 128 
 
 'Aultman & T. Co. v. Pikop, 56 Mass. 4?s : Smith v. Williams. 1 Hi 
 
 Minn. 581, 58 N. W. Rep. r,r,\ ■ Blake Mass. 510,513; National Tel. Mfg. Co. 
 
 v. Boisjoli, 51 Minn. 296, 53 N. W. v. Du Hois, 165 Mass. 117; 42 N. E. 
 
 1;. p 687. Rep. 510. 
 
 1 h Oregon, 1-.'
 
 CHAPTER II. 
 
 PROPERTY SUSCEPTIBLE OF FRAUDULENT ALIEN- 
 ATION.— ASSETS AVAILABLE TO CREDITORS. 
 
 23. Interests available — Life insur- 
 
 ance. 
 
 24. Tangible property and intangible 
 
 interests. 
 
 25. English statutes and authorities. 
 
 26. Recovering improvements — 
 
 Rents and profits. 
 
 27. Rule as to crops. 
 
 28. Property substituted or mingled. 
 
 29. Estates in remainder and rever- 
 
 sion. 
 
 30. Equitable interests. 
 
 31. Equity of redemption. 
 
 32. Reservations. 
 
 33. Choses in action. 
 
 34. Claims for pure torts — Damages. 
 
 35. Seats in stock exchanges. 
 
 36. Trade-marks. 
 
 37. Reaching book royalties. 
 
 38. Patent rights. 
 
 § 39. Powers, when assets for cred- 
 itors. 
 
 40. Statutory change as to powers in 
 
 New York. 
 
 41. Gifts of small value 
 
 42. Debts forgiven or canceled. 
 
 43. Enforcing promises of third par- 
 
 ties. 
 
 44. Tracing the fu in I. 
 
 45. Income of trust estate. 
 
 46. Rule as to exempt property. 
 
 47. Fraudulent purchases of exempt 
 
 property. 
 
 48. Covinous alienation of exemp- 
 
 tions. 
 
 49. Conflicting cases. 
 
 50. Abandoned exemptions. 
 50a. What cannot be reached. 
 50b. Payments made to a debtor. 
 
 Havinof con- 
 
 o 
 
 § 23. Interests available — Life insurance, 
 sidered the principles of the common law and the early- 
 statutes and authorities relating to covinous alienations, 1 
 and taken a general view of the subject, it becomes 
 necessary next to discuss the various classes of property, 
 and the rights and equitable interests of debtors which 
 may constitute the subject-matter of fraudulent aliena- 
 tions, or which can be reached by creditors' bills or other 
 appropriate remedies, or through the instrumentality of 
 a receiver, liquidator, or assignee. We have already 
 seen that in general one of the requisites of a fraudulent 
 
 1 See §§ 19-22.
 
 54 INTERESTS AVAILABLE — LIFE INSURANCE. §23 
 
 transfer which will persuade the courts to interfere is 
 that the property or thing disposed of by the debtor 
 should be of some value, out of which the creditor might 
 have realized the whole or a portion of his claim. 1 Hence, 
 where a debtor canceled upon his books, without con- 
 sideration, an old account against one who was insolvent, 
 it was declared that the transaction did not amount to a 
 disposition of property with intent to defraud creditors. 2 
 The foundation of this rule is self-evident. The court 
 will not interest itself in any attempt to extend relief to 
 a creditor unless its process and judgment can be ren- 
 dered practically effectual, and as a result of its action, a 
 substantial benefit can be conferred upon the creditor. 
 If the property transferred, and sought to be reached and 
 subjected to the process of the court, is not liable to 
 execution," or if the debtor has no beneficial interest in 
 it, the court will not inquire into the modes or motives of 
 its disposition. Such an inquiry would be futile. Hence, 
 it was held in Minnesota, that a conveyance of real 
 estate encumbered for more than its value would not be 
 declared void at the instance of creditors of the grantor, 
 though made with the intent to put the real estate beyond 
 their reach. 1 In Hamburger v. Grant, 5 it appeared that the 
 amount of the indebtedness to the complainant was three 
 dollars and fifty cents. In an action to cancel a fraudu- 
 lent conveyance, Kelly, J., observed : " The interposition 
 of a court of equity ought not to be asked to set aside a 
 deed on the ground of fraud for such a small sum of 
 money." The value of the assigned property is always 
 
 r>. * Compare Ithaca Gas Light Co. v. 
 
 1 1. .u v. Godfrey, ^s X. Y. 069. Trenian, 93 N. Y. G60 ; Chapman v. 
 
 ; I'i. Banker & Tradesman Pub. Co., 128 
 
 »Aultman A: T. Co. v. Pikop, 56 Mass. ITS; Smith v. Williams, 116 
 
 Minn. 581, 58 X. W, Rep. 551 ; Blake Mass. 510, 513 ; National Tel. Mfg. Co. 
 
 v. Boisjoli, 51 Minn. 896,58 X. W. v. Du Bois, L65 .Mass. 117, 42 N. E. 
 
 Rep. • Rep. 510. 
 
 - Oregon, 1
 
 24 TANGIBLE PROPERTY AND [NTANGIBLE INTERESTS. 
 
 57 
 
 may here observe, according to some authorities, has a 
 right to devote a reasonable portion of his earnings to 
 life insurance for the benefit of his family, 1 though the 
 statutes vary and the courts are not entirely in harmony 
 on the subject. 3 
 
 It has been said to be a well-settled rule that a credit- 
 or's bill, filed for the purpose of removing a fraudulent 
 obstruction, must show that such removal will enable the 
 judgment to attach upon the property;' 5 hence a valid 
 general assignment will supplant -a creditor's proceed- 
 ings to cancel an instrument 4 such as a mortgage 5 if the 
 assignee and not the creditor would be the party bene- 
 fited by a successful issue in the suit. 
 
 §24. Tangible property and intangible interests. — What 
 interests then can be reached by creditors ? Manifestly all 
 tangible property, whether real or personal, which would 
 
 1 Washington Central Bank v. 
 Hume, 128 U. S. 195, 9 S. C. Rep. 41. 
 Contra, Friedman v. Fennell, 94 Ala. 
 270, 10 So. Rep. 649 ; Merchants & 
 Miners' Trans. Co. v. Borland, 53 N. J. 
 Eq. 287, 31 Atl. Rep. 272. In the 
 latter case the court say : " I am un- 
 able to discover any principle or 
 well considered authority upon which 
 such a transaction can be sustained 
 against creditors. To do so would, 
 as it seems to me, be to run coun- 
 ter to principles so well settled 
 and familiar as hardly to require re- 
 cital. A husband cannot settle money 
 or property in any shape upon his 
 wife while he is indebted. If he at- 
 tempts it the creditors are entitled to 
 the aid of this court to reach the prop- 
 erty so settled, in whatever form it 
 may be found." The notion that credi- 
 tors could only recover the amount of 
 their premiums (^tna Nat. Bank v. 
 United States Life Ins. Co., 24 Fed. 
 Rep. 770 ; Hise v. Hartford Life Ins. 
 Co., 90 Ky. 102 ; Pence v. Makepeace, 
 
 65 Ind. 345), is not accepted by the 
 writer of an article in Vol. 25, Aruer. 
 Law Rev. 185, where the subject is 
 reviewed anil the decision in Wash- 
 ington Central Bank v. Hume, 128 
 U. S. 195, is criticized. Examine in 
 this general connection McCutcheon's 
 Appeal, 99 Pa. St. 133; Stokes v. 
 Coffey, 8 Bush (Ky.) 533. In the lat- 
 ter case, the debtor exchanged a 
 policy on his life in his own favor for 
 a similar policy payable to his wife, 
 it was held that this transaction was 
 void as to antecedent creditors. 
 
 2 See Barbour v. Conn. Mutual, 61 
 Conn. 248 ; Friedman v. Fennell, 94 
 Ala. 571. Id So. He,,, (ill). 
 
 : Spring v. Short. 90 N. Y. 545. See 
 Geery v. Geery. 63 N. Y. 252 : South- 
 ard v. Benner, 72 N. Y. 424. 
 
 4 Childs v.Kendall, 17 Weekly Dig. 
 (N. Y.) 546. 
 
 'Spring v. Short, 12 Weekly Dig. 
 (N. Y.) 360 : affi'd 90 N. Y. 545. But, 
 see Leonard v. Clinton, 26 Hun (N. 
 Y.) 288.
 
 58 fANGIBLE PROPERTY A.ND [NTANGIBLE [NTERESTS. §24 
 
 have been subject to levy and sale under execution, is sus- 
 ceptible of fraudulent alienation, and may be reclaimed and 
 recovered by the creditor where it has been transferred by 
 the debtor with the requisite fraudulent intention. The 
 line is not drawn here, however. The manifest tendency 
 of the authorities is to reclaim every species of the debtor's 
 property, prospective, expectant 1 or contingent, for the 
 creditor. If a conveyance of land is set aside, the pro- 
 ducts of the land may also be reached.' As has been 
 shown, transfers of intangible interests 3 and rights in 
 action, stocks, 4 annuities, 5 life insurance policies, promis- 
 sory notes, 7 book royalties/ patent rights, 1 ' property of 
 imprisoned felons, 10 legacies, 11 money, bank bills, 12 and 
 choses in action generally, 13 may be reached. It has been 
 observed M that the principle toward which the highest 
 
 'See Read v. Mosby, *7 Terra. 759, 
 11 s \v. Rep. 940. 
 
 State v. McBride, 105 Mo. 265, 
 15 S. W. Rep. 72. 
 
 A ]>ar<' possession or possibility 
 cannot be reached by creditors: Smith 
 v. Kearney, -i Barb Ch. (N. Y.) 533; 
 Waggoner v. Speck, 3 Ohio, 293; nor 
 can they enforce a moral claim which 
 ;i debtor may bave upon the con- 
 science of an executor. Sparksv. De 
 La < merra, 18 < !al. <>7(i. 
 
 1 Baj ard v. I [off man, I Johns. < !h. 
 
 i.\. V. 1 150 : W I v. Pierce, 9 Cow. 
 
 (N. Y.i 723; Edmeston v. Lyde, 1 
 Paige 1 N. Y. 1 641, 
 
 Nbrcutl \. Dodd, 1 Craig & Ph. 
 100. 
 
 6 Burton v. Farinholt, 86 X. C 260; 
 Stokoe \. Cowan, 29 Beav. 637 1 Jen 
 kyn v. Vaughn, 3 Drew. 419 ; Anthra- 
 cite In- 1 ... v. Sears, 109 Mass 383. 
 
 'La Crosse Nal Bank \. Wilson, 7* 
 Wis. 391. 18 N. W. Rep. 158 . Bragg 
 ■ . 1 ..,■, nor, 85 Wis. 168, 55 N. W. 
 Rep. 919; Johnson v. Alexander, L25 
 End. 575, 25 N. E. Rep, 706. 
 
 Lord v. Barte, lis Mass. 271. 
 
 'Barnes v. Morgan, 3 Hun (X. Y.i 
 704. 
 
 '"Matter of Nerac, 35 Cal. 392. 
 
 "Bigelow \. Ayrault, 46 Barb. (N 
 Y. I 143. 
 
 See Bayard v. I lull man. 4 Johns 
 ch. (X. Y.) 4.J1 : Spader v. Davis, ! 
 Johns, ch. (N. V.i 280; Badden v 
 Spader, 20 Johns. (N. Y.)554; Shain 
 wald v. Lewis, i; Fed. Rep. 770. 
 
 I Drake \ . Rice, CH) .Mass. 
 Pendleton \. Perkins, 4!» Mm. 
 Powell v. Howell, 63 N. C. 283 
 meston v. Lyde. 1 Paige (N. Y. 1 
 Stinson v. Williams. ;:;. ( la. 1 70 ; Rog- 
 ers v. Jones, 1 Neb. 417 t'ii\ lit' New- 
 ark v. Funk, 15 Ohio Si. 462 ; llitt v. 
 Ormsbee t 14Hl. 233 ; Tantuxn v. < rreen, 
 21 N. .1. Eq. 864. Bui compare Stew- 
 art v. English, 1; I ml 1 ;<; ; Wallace v. 
 Lawyer, 54 [nd. 501 : Grogan v. Cooke, 
 2 Hall & B.238 ; Nantes v. Corrock, !) 
 
 Ves. 188. 
 
 II Esaaj by John Reynolds, Esq., 
 cited supra. 
 
 410; 
 
 565 : 
 
 Ed- 
 
 037;
 
 §25 ENGLISH STATUTES \\1» AUTHORITIES. 59 
 
 courts in England and in all the States arc more or less 
 rapidly working is: "That the entire property of which 
 a debtor is the real or beneficial owner, constitutes a fund 
 which is primarily applicable, to the fullest extent of its 
 entire value, to the payment of its owner's debts. And 
 the courts will not allow any of that value to be with- 
 drawn from such primary application, if they can find any 
 legal or equitable ground on which to prevent such 
 withdrawal." 
 
 Creditors should remember that whether an equitable 
 interest in real estate is liable to be appropriated by legal 
 process to the payment of the debts of the beneficiary is 
 to be determined by the local law where the property has 
 its situs} 
 
 §25. English statutes and authorities. — Mr. May, an 
 English writer upon this general subject of fraudulent 
 alienations, speaking of the kinds of property or interests 
 which may be reached by creditors, says: 2 "The pre- 
 amble of the 13 Eliz. c. 5, declares it to be made 'for 
 the avoiding and abolishing of feigned, covinous, and 
 fraudulent feoffments, gifts,' etc., 'as well of lands and 
 tenements as of goods and chattels,' made to delay or 
 defraud creditors ; and it seems that under this descrip- 
 tion are included all kinds of property, real and personal, 
 legal and equitable, 3 vested, reversionary, 4 or contin- 
 gent, 5 which are subject to the payment of debts, or 
 liable to be taken in execution at the time of the fraudu- 
 lent conveyance. Generally speaking, the same general 
 
 'Spindle v. Shreve, 111 U. S. 542; 4 Ede v. Knowles, 2 Y. A: C. N. R. 
 
 Nichols v. Levy, 5 Wall. 433. See 172. 
 
 Nichols v. Eaton, 91 U.S. 716-729. b French v. French, 6 De G. M. & 
 
 2 May on Fraudulent Conveyances, G. 95. 
 
 p. 17. " "Sims v. Thomas, 12 A.dol. & El. 
 
 "Ashfield v. Ashfield, 2 Vern. 536 ; Turnley v. Hooper, 2 Jur. (N. S.) 
 
 287. 1081.
 
 6o 
 
 tMPROVEMENTS — RENTS AND PROFITS. 
 
 §26 
 
 principle and rule of interpretation may be deduced from 
 the American authorities. 1 
 
 £ 26. Recovering improvements — Rents and profits.— An 
 extreme illustration of the disposition of the courts to 
 favor creditors is the familiar and salutary rule that 
 improvements placed by a debtor upon real property of 
 another, acting in concert with him to defraud creditors, 
 can be followed, and the realty charged in favor of 
 creditors of the debtor with the value of such improve- 
 ments.'-' In Isham v. Shafer, 8 Johnson, J., said : "Where 
 no debt has been created between the parties to the 
 
 1 Mr. May further observes : " B3 1 
 and '2 Vict. c. 110, many kinds of 
 property have been made available to 
 creditors for the payment of debts. 
 s.i that now copyhold land [1 and 2 
 Vict. c. 110, s. 11, and see Bott v. 
 Smith, 21 Bear. 511], money and 
 bank notes [ibid. i 12, Barrack v. 
 McCulloch, : J . K. & J. 110; Colling- 
 ridgev. Paxton, 11 C. B. 683](whether 
 of the Bank of England or of any 
 other bank or bankers), and any 
 cheques, Mil- of exchange, promis- 
 sorj notes, bonds, specialties, or other 
 securities for money [Spirett v. Wil- 
 lows, 11 Jur. (N. s.i 70], and stock 
 and shares in public funds and public 
 companies [1 and 2 Vict. c. 110, §§ 11 
 
 and I.".: Warden v. Jones. 2 De 6. & 
 
 J. 76; Goldsmith v. Russell, 5 De Gr. 
 M. & <;. 547], are to he considered as 
 dsand chattels ' wit hin t he mean- 
 ing of this section [13Ehz. c. ■">. js 1 1." 
 May on Fraudulent Conveyances, p. 
 21. 
 
 Rose \ Brown, 1 1 W. Va. 
 137; Seasongood v. Wan-, 104 Ala. 
 212 ; Heck \. Fisher. 78 Ky. 644 ; 
 Robinson \. Huffman, 15 B. Mom. 
 
 I Ky. 1 82 ! A t li.y v. Knoits, (i I'.. Mom. 
 
 K\ .) 29; Sexton \. Wheat on, 8 
 
 Wheat. 229 . Kirby v. Bruns, 45 Mo. 
 
 284 : Lockhard v. Beckley, 10 W. Va. 
 
 P7; Burt v. Timmons, 29 W. Va. 458, 
 2 S. E. Rep. 780; Dietz v. Atwood, 
 10 Brad. (111.) 99 ; Isham v. Schafer, 
 60 Barb. (N. Y.) 317; but compare 
 Webster v. Hildreth, 33 Vt. 457 : 
 Caswell v. Hill, 47 N. II. 407. In 
 Humphrey v. Spencer, 36 W. Va. 11, 
 18 ; US E. Rep. 410, the court say : 
 "That money of a husband diverted 
 from payment of his debts, and 
 expended in permanent improve- 
 ments on his wife's land, can be fol- 
 lowed by his then creditors, whether 
 the act he done with fraudulent pur- 
 pose or not, I regard settled in tins 
 State. Lockhard v. Beckley, 10 W. Va. 
 ST: Rose v. Brown. 1 1 W. Va K37: Kan- 
 awha Valley Bank v. Wilson, 25 W. 
 Va. 242 ; Burl v. Timmons. 2!) W. Va. 
 111. 2 s. E. hep. 780. .Mr. Bishop, in 
 his work on Law of Married Women 
 (volume 2, § 1 7 J ■ . expresses tin ■..pinion 
 that it is only where a fraudulent 
 purpose on the part of the wife is 
 shown that her land can he so 
 charged ; )>ut he admits that this 
 opinion does not accord with the 
 
 weight of authority. This doctrine 
 
 is opposed in the cases of Webster v. 
 Hildreth, :;:; Vt. 457 ; Corning v. 
 
 Fowler. 24 la. 584 : h'ohinson v. Huff- 
 man. 15 B. Mon. (Ky.) 80." 
 »60 Barb. (N. Y.) :«0.
 
 §26 IMPROVEMENTS — RENTS AND PROFI1 . 6l 
 
 fraudulent transaction, and the personal property of the 
 judgment-debtor has merged in, and become part of 
 the real estate of another in this way, the appropriate, if 
 not the only remedy is to fasten the judgment upon the 
 real estate to the extent of the judgment-debtor's property 
 thus made part of the realty." In a New Hampshire case 
 it was held that a guardian could not purchase property 
 and place it on the land of his ward to the injury of his 
 creditors j 1 but the property was not attached to the free- 
 hold, and the doctrine may well be doubted whether an 
 infant's land can be subjected to the claims of creditors 
 against a debtor who has placed improvements on it. 2 
 In Lynde v. McGregor, 3 where it appeared that an insol- 
 vent husband had made extensive expenditures upon 
 lands belonging to his wife, and had increased the value 
 of the estate, Gray, J., observed: "The amount of such 
 increase in value, for which no consideration has been 
 paid by the wife, and which has been added to her estate 
 by the husband in fraud of his creditors, in equity belongs 
 to them, and may be made a charge upon the land for 
 their benefit." Temporary or perishable improvements, 4 
 which do not add to the permanent value of the land, can- 
 not ordinarily be reached. 
 
 It is certainly reasonable, and it seems to be clear, that 
 rents and profits can be recovered from a fraudulent gran- 
 tee who holds the property under a secret trust for the 
 debtor. 5 A creditor, by filing a bill after the return of an 
 
 1 Tenney v. Evans, 14 N. H. 343, Title to Land, (2d. ed.) § 702 ; Dick v. 
 40 Am. Dec. 194. Hamilton, 1 Deady, 322. 
 
 2 Mathes v. Dobschuetz, 72 111. 438. 5 Marshall v. Croon. 60 Ala. 121. 
 Compare Washburn v. Sproat, 16 See Kipp v. Hanna, 2 Bland's Ch. 
 Mass. 449. (Md.) 26 ; Robinson v. Stewart. 10 N. 
 
 3 13 Allen (Mass.) 182; Seasongood Y. 190. Compare Edwards v. Ent- 
 
 v. Ware, 104 Ala. 212, 16 So. Rep. wisle. 2 Mackey (D. C.) 43; Hadley 
 
 51; Humphrey v. Spencer, 36 W. Va. v. Morrison, 39 III. 392; Thompson v. 
 
 11. Bickford, 19 Minn. 17: McGahan \. 
 
 4 See Sedgwick & Wait on Trial of Crawford (S. < . i 25 S. E. Rep. 123.
 
 62 RULE AS TO CROPS. § 2*] 
 
 execution unsatisfied, may also obtain a lien upon the 
 rents and profits of the real estate of his judgment-debtor, 
 which accrued during the fifteen months allowed bylaw to 
 redeem the premises from a sale by the sheriff on execu- 
 tion, and satisfaction of the judgment may be decreed 
 out of such rents and profits. The chancellor said : "Upon 
 what principles of justice or equity can the debtor claim 
 to retain the whole rents and profits of a large real estate, 
 for the period of fifteen months, when such rents and 
 profits are necessary to pay the debts which he honestly 
 owes to his creditors?" 1 In Loos v. Wilkinson, 2 Earl, 
 J., used these words: "These debtors could no more 
 give away the rents and profits of their real estate than 
 they could give away the real estate itself." 3 
 
 § 27. Rule as to crops. — The same general principle per- 
 vades the cases as to growing crops. Thus, in Fury v. 
 Strohecker/ it was decided that a judgment-creditor was 
 entitled to resort to crops grown upon the land of his 
 debtor after it had been transferred in fraud of his rights, 
 so far at least as the fraudulent orantor retained an interest 
 in them, by an understanding with the grantee ; and where 
 there was reason to suppose such collusion existed all 
 doubts should be solved in the creditor's favor. 5 And in 
 Massachusetts it was decided that if a debtor conveyed 
 land to his wife, with a design to defraud his creditors, 
 and the wife participated in the intent, hay cut on the 
 
 1 Farnham v. Campbell, 10 Paige 8 But compare Robinson v. Stewart, 
 
 (N. Y.) 598-601. See Campbell v. L0 N. Y. 189 ; Collumb v. Read, 24 N. 
 
 Genet, 2 Hilt. (N. Y.) 396; Dow v. Y. 505. 
 
 Platner, 16 N. Y. 565; Scbermerhorn 'II Mich. 337. 
 
 \. Merrill,! Barb. (N. Y.) 517: Strong 5 Compare Pierce v. Hill, 35 Mich. 
 
 v. Skinner, t Barb. (N. Y. 1 558. 201 ; Petera v. Light, 7(5 Pa. St. 289 
 
 ■in> N. Y. 214, inn. E Rep.99. Jones v. Bryant, 13 N. H. 53 ; Garbutt 
 
 ad appeal, LIS N. Y 485, 21 N. E. v. Smith, 40 Barb. (N. Y.) 22. 
 Rep. '■'<'->2, involving rules as to an ac- 
 count Lng bj a fraudulent grantee.
 
 §28 PROPERTY SUBSTITUTED OR MINGLED. 63 
 
 land was liable to be taken on execution to satisfy the 
 claim of a creditor of the husband, upon a debt contracted 
 subsequent to the conveyance. 1 Even if the land itself 
 is exempt, the crops growing thereon, if subject to levy, 
 can be reached in the hands of a fraudulent grantee.'* 1 
 The rule here laid down applies also to the product of 
 mineral lands. 3 
 
 § 28. Property substituted or mingled. — Property cannot 
 be placed beyond the reach of creditors by a change in its 
 form or character. It may be traced and identified. In 
 McClosky v. Stewart, 4 the creditor sought to reach cer- 
 tain machinery, tools, etc., constituting the "plant" of a 
 business fraudulently transferred, and the defendant 
 attempted to limit the recovery to such property as was 
 in existence at the time of the transfer. The court 
 declined to apply this rule to the new tools and machin- 
 ery which had been purchased for the purpose of supply- 
 ing the waste incident to ordinary wear and tear. The 
 parties in possession having had the benefit of the 
 machinery and tools, and having partially worn them out 
 in the business, might be said to have had the benefit of 
 the waste, and there was no reason in law or in equity 
 why the repairs and new tools, which were rendered neces- 
 sary to supply such waste, should not follow the property 
 itself. 5 
 
 1 Dock! v. Adams. 125 Mass. 398. A same case that where a fraudulent 
 mortgage of crops by which an in- transferee mingled his own property 
 terest is reserved to the moi'tgagor is with that which he had fraudulently 
 void. Merchant's & M. Sav. Bank v. received, he would not be allowed to 
 Lovejoy, 84 Wis. 601, 55 N. W. Rep. claim that the property so mingled 
 108. should subsequently be assorted and 
 
 2 Erickson v. Paterson, 47 Minn, set aside for the payment of the credi- 
 525, 50 N. W. Rep. 699. tors. The inference seems to be that 
 
 3 State v. McBride, 105 Mo. 265, 15 he would lose it all. If the property 
 S. W. Rep. 72. could be readily identified and sepa- 
 
 4 63 How. Pr. (N. Y.)142. See Leh- rated, it is difficull to sec why this 
 
 man v. Kelly, 68 Ala. 192. harsh rule should be applied. Com- 
 
 5 It was further decided in this pare Hooley v. Gieve, affirmed 82 N.
 
 64 ESTATES IX REMAINDER AND REVERSION. § 29 
 
 ? 29. Estates in remainder and reversion. — A vested 
 remainder in fee is liable for debts in the same way as an 
 estate vested in possession. Though the time of posses- 
 sion is dependent upon the termination of a life estate, 
 this only lessens its value for the time being. The lia- 
 bility of the estate to creditors is not in the least affected. 
 In Nichols v. Levy, 1 Swayne, J., delivering the opinion of 
 the United States Supreme Court, said : "It is a settled 
 rule of law that the beneficial interests of the cestui que 
 (rust, whatever it may be, is liable for the payment of his 
 debts. It cannot be so fenced about by inhibitions and 
 restrictions as to secure to it the inconsistent character- 
 istics of right and enjoyment to the beneficiary and 
 immunity from his creditors. A condition precedent, that 
 the provision shall not vest until his debts are paid, and a 
 condition subsequent that it shall be divested and for- 
 feited by his insolvency, with a limitation over to another 
 person, are valid, and the law will give them full effect. 
 Beyond this, protection from the claims of creditors is 
 not allowed to go."- In French v. French, 3 it was held 
 that a contingent reversionary interest is within the 
 statute. 4 An assignment without consideration of an 
 estate in expectancy by an insolvent heir apparent has 
 been held to be fraudulent. 5 The husband's half or por- 
 tion in an estate in entirety can be reached by his creditors. 6 
 
 Y. 625, on opinions iif New York Com- eon, 18 Ves. 420: Piercy v. Roberts, 
 
 mon Plea- ; 3. C, 9 Abb. X. C. (N. 1 Mylne & K. 4; Dirk v. Pitchford, 1 
 
 Y.) 8, 41, and aote of the editor; Dev. & Bat. (N. C.) Eq. 484, 
 
 Dow v. Berry, IT Fed. Rep. 121; GDeG. M. & G. 95. See Neale 
 
 Smith v. Sanborn, 6 Gray(Mass.) L34 ; v. Day, 28 L. J. Ch. 45. 
 
 The " Idaho," 93 U. S. 575. 4 A contingent remainder is not 
 
 1 5 Wall. 4:5:1 subject to execution. Jackson v. 
 
 'Citing Graves v. Dolphin, 1 Simon, Middleton, 52 Barb. 'X. Y.)9; Wat- 
 
 66 Biebane v. Mebane, 1 [red. Eq. son v. Dodd, 68 N. C. 528. 
 
 (X. C.) 181 : Bank v. Forney, 2 [red. Read v. Mosby, 87Tenn.759, 11 S. 
 
 Eq. (N. C.) L81 i v l: Snowdon v. W. Rep. 940. 
 
 Dales, 6 Simon, 524 ; Foley v. Burnell, 'Newlove v. Callaghan, 86 Mich. 
 
 1 Bro. 0. C. 374 : Brandon v. Robin- 297, 18 X. \V. Rep. 1096.
 
 § 30 EQUITABLE INTERESTS. 65 
 
 §30 Equitable interests. — Equitable interests constitute 
 a frequent subject-matter of creditors' suits. In Sanford 
 v. Lackland, 1 the learned Dillon, J., held that if property 
 was given to trustees to hold for A. until he reached the 
 age of twenty-six years, when it was to be paid over to 
 him, and A. became bankrupt before he arrived at twenty- 
 six, his assignee in bankruptcy was entitled to the prop- 
 erty. Chief-Justice Gray, in Sparhawk v. Cloon, 3 says, 
 that "the equitable estate for life is alienable by and 
 liable in equity to the debts of the cestui que trust, and 
 that this quality is so inseparable from the estate that no 
 provision, however express, which does not operate as a 
 cesser, or limitation of the estate itself, can protect it 
 from his debts." 3 We shall presently consider the cases, 
 which must be distinguished from the ones just cited, in 
 which it is held that the founder of a trust may secure the 
 enjoyment of it to other persons, the objects of his 
 bounty, by providing that it shall not be alienable by 
 them, or be subject to be taken by their creditors, and 
 that his intentions in this regard will, in certain cases, be 
 respected by the courts. 4 
 
 A creditor's bill, through the instrumentality of a re- 
 ceiver, will reach the interest of the debtor in his deceased 
 
 > 2 Dillon, 6. Wall. 433, 441 ; Fox v. Peck, 151 111. 
 
 2 125 Mass. 266. 226, 37 N. E. Rep. 873. Compare 
 
 3 See Brandon v. Robinson, 18 Ves. Potter v. Couch, 141 U. S. 296, 11 S. C. 
 
 429, 1 Rose, 197; Rochford v. Rep. 1005. 
 
 Hackman, 9 Hare, 475 ; 2 Spence's 4 See Sparhawk v. Cloon, 125 Mass. 
 
 Eq. Jur. 89, and cases cited ; Tilling- 266 ; White v. White, 30 Vt. 338, 
 
 hast v. Bradford, 5 R. I. 205 ; Mebane 344 ; Arnwine v. Carroll, 8 N. J. Eq. 
 
 v.Mebane, 4 Ired. Eq. (N. C.) 131 ; 620, 625 ; Holdship v. Patterson, 7 
 
 Heath v. Bishop, 4 Rich. Eq. (S. C.) Watts. (Pa.) 547; Brown v. William- 
 
 46 ; Smith v. Moore, 37 Ala. 327 ; Mc- son, 36 Pa. St. 338 ; Rife v. Geyer, 
 
 Ilvaine v. Smith, 42 Mo. 45 : Sanford 95 Pa. St. 393 ; Nichols v. Eaton. 91 
 
 v. Lackland, 2 Dillon, 6 ; Walworth, U. S. 716, 727-729 ; Hyde v. Woods, 
 
 C, in Hallett v. Thompson, 5 Paige 94 U. S. 523, 526; Broadway Nat. 
 
 (N. Y.) 583, 585 ; Comstock, J., in Bank v. Adams, 133 Mass. 171 ; Spin- 
 
 Bramhall v. Ferris, 14 N. Y. 41, 44 ; die v. Shreve, 9 Biss. 199, 4 Fed. 
 
 Swayne, J., in Nichols v. Levy, 5 Rep. 136. See §§ 39, 40. 
 
 5
 
 66 EQUITY OF REDEMPTION — RESERVATIONS. §§31,32 
 
 father's estate ; ] so an inchoate interest such as a tenancy, 
 by the courtesy,- and a widow's dower, 3 may be reached 
 by the aid of a court of equity. 
 
 § 31. Equity of Redemption. — In a controversy which 
 arose in Alabama, 4 it was said that, aside from constitu- 
 tional and statutory exemptions, a debtor could not own 
 any property or interest in property -which could not be 
 reached and subjected to the payment of his debts, and 
 that an equity of redemption was property, and was a valu- 
 able right capable of being subjected to the payment of 
 debts, in courts of law and in equity ; and hence a transac- 
 tion by which an embarrassed debtor concealed the exist- 
 ence of such an interest from his creditors must necessarily 
 hinder and delay them. 5 
 
 § 32. Reservations — Debtors often make reservations 
 in conveyances for their own benefit, but such subterfuges 
 are idle so far as subserving the debtors' personal interest 
 is concerned. 6 In Crouse v. Frothin£ham, 7 the debtor 
 reserved the right to use and occupy a part of the premises 
 conveyed for three years without rent, and it was shown 
 that such use and occupation were worth $750. The 
 court held that if the reservation was effectual to vest in 
 the debtor a legal interest in the premises to the extent 
 stated, his judgment-creditors could reach it. And if the 
 debtor merely had a parol lease for three years, which was 
 void by the statute of frauds, the consideration being fully 
 paid, equity would decree a specific performance of it, and 
 
 1 Mr Arthur v. Hoysradt, 11 Paige 5 See Chautauque County Bank v. 
 
 (N. Y.) 495. Risley, 19 N. Y. 369; Campbell v. 
 
 » Ellsworth v. ('<»»k, s Paige (N. Fish, 8 Daly (N. Y.) 102. 
 
 Y.)643; Beamish v. Hoyt, 2 Root. 6 Young v. Heennans, 66 N. Y. 382, 
 
 (N. Y.) 307. and cases cited; Todd v. Monell, 19 
 
 Tompkins v. Fonda, 4 Paige (N. Hun (N. Y.) 362. 
 
 Y.) 447; Payne v. Becker, 87 N. Y. 7 27 Hun (X. Y.) 125; reversed, 97 
 
 157. N. Y. 105. See Elias v. Farley, 2 Abb. 
 
 Suns v. Gaines, 64 Ala. 393. Ct. App. Dec. (N. Y.) 11.
 
 § 33 CHOSES IN ACTION. 67 
 
 thus the debtor would have an equitable interest of some 
 value which the creditors miodit reach. The court of last 
 resort, however, reversed the decision on the insufficiency 
 of the evidence. 1 
 
 § 33. Choses in action. — While the books and cases are 
 full of general expressions to the effect that intangible 
 interests fraudulently alienated by the debtor may be 
 reclaimed by the creditor, yet the rule that choses in 
 action can be reached by creditors and subjected to the 
 payment of debts, has not been established without a 
 struggle, and is not even now universal in its operation. ' 
 When we consider that vast fortunes may be concentrated 
 in this species of property, it manifestly becomes of para- 
 mount importance to a creditor to know whether his 
 process will cover it. Cases can be found holding that 
 even equity is ordinarily powerless to require the debtor 
 to apply choses in action in liquidation of debts, 3 but it 
 seems to us that the better authority by far is to the effect 
 that such interests can be reached by creditors, 4 and 
 many cases, more or less founded upon statutory provi- 
 sions, upholding the creditors' right to reach this class of 
 assets might be cited. 5 Thus creditors may reach the 
 
 1 Crouse v. Frothingham, 97 N. Y. 4 Drake v. Rice, 130 Mass. 410 ; 
 
 105. Bragg v. Gaynor, 85 Wis. 468 ; 55 N. 
 
 ' 2 See § 17 ; Greene v. Keene, 14 R. W. Rep. 919, case citing the text ; 
 
 I. 388 ; Clapp v. Smith, 16 R. I. 717, Bayard v. Hoffman, 4 Johns. Cli. (N. 
 
 19 Atl. Rep. 330. Y.) 450; Powell v. Howell, 03 N. C. 
 
 ;i Grogan v. Cooke, 2 Ball. & B. 283 ; Ahbott v. Tenney, 18 N. H. 109: 
 
 2:::; ; Nantes v. Currock, 9 Ves. 188 ; Sargent v. Salmond, 27 Me. 539 ; 
 
 Rider v. Kidder, 10 Ves. 368 ; McCar- Stinson v. Williams, 35 Ga. 170: 
 
 thy v. Goold, 1 Ball. & B. 387; Rogers v. Jones. 1 Neb. 417 ; Pend I e- 
 
 Dundas v. Dntens, 1 Ves*. Jr. 196; ton v. Perkins, 49 Mo. 565 ; Edmeshm 
 
 McFerran v. Jones, 2 Litt. (Ky.) 219; v. Lyde, 1 Paige (N. V.) 637 ; Hadden 
 
 Green v. Tantnm, 19 N. J. Eq. 105 ; v. Spader, 20 Johns. (N. Y.) 554; 
 
 Wallace v. Lawyer, 54 Ind. 501 ; Mtna Nat. Bank v. Manhattan Life 
 
 Stewart v. English, 6 Ind. 176 ; Wat- Ins Co., 24 Fed. Rep. 769. 
 
 kins v. Dorsett, 1 Bland's Ch. (Md.) 5 City of Newark v. Funk, 15 Ohio 
 
 533. See Greene v. Keene, 14 R. I. St. 462 ; Bryans v. Taylor, Wright 
 
 388. (Ohio) 245 ; Davis v. Sharron, 15 B.
 
 68 CLAIMS FOR PURE TORTS. §34 
 
 proceeds of a fraudulently transferred insurance policy. 1 
 The principle running through these cases is highly im- 
 portant, for under it the creditor may impound money of 
 the debtor in the hands of a sheriff, 2 money earned but 
 not yet due, 3 money due to heirs or distributees in the 
 hands of personal representatives, 4 and dower before 
 admeasurement. 5 And creditors of a corporation may 
 sustain a bill to compel stockholders to pay their 
 subscriptions. 6 
 
 § 34. Claims for pure torts — Damages. — The mere right 
 of action of a judgment-debtor for a personal tort, as for 
 assault and battery, slander, or malicious prosecution, can- 
 not, in the nature of things, be reached by a complainant 
 in a judgment-creditor's action. 7 Nor will a claim of this 
 kind pass to a receiver under the usual assignment by the 
 defendant in such a suit. 8 This rule proceeds upon the 
 theory that such claims or rights of action are non-assign- 
 able. It must be remembered in this connection, how- 
 ever, that, in the case of a tort, causing an injury to the 
 
 Mon. (Ky.) 64; Hitt v. Ormsbee, 14 106: Ryan v. Jones, 15 111. 1 ; Sayre 
 
 111.283: Burnes v. Cade, 10 Bush. v. Flournoy, 3 Ga. 541. 
 
 (Ky.) 251 ; Tantum v. Green, 21 N. '' Stewart v. McMartin, 5 Barb. (N. 
 
 J. Eq. 364. "The words ' cliose in Y.) 438 ; Tompkins v. Fonda, 4 Paige 
 
 action' might be broad enough to (N. Y.) 448. See note to Donovan v. 
 
 include even actions for damages in Finn, 14 Am. Dec. 542. 
 
 torts, were it no1 that they probably 6 Miers v. Zanesville & M. Turnp. 
 
 have never been regarded strictly as Co., 11 Ohio 273, 13 Ohio, 197 ; 
 
 property; nor as assignable." Ten- Henry v. Vermilion R. R. Co., 17 
 
 Broeck v. Slue, 13 Bow. Pr. (X. V.) Ohio 187; Hatch v. Dana, 101 U. S. 
 
 30. See Budson v. I'rets, 11 Paige 205; Ogilvie v. Knox Ins. Co., 22 
 
 V. I ISO. Sec £ 34. How. 380 ; Pierce v. Milwaukee Con- 
 
 •iEtna Nat. Bank v. Manhattan struetjon Co., 38 Wis. 253. See 
 
 l.itv In-, (o 24Fed. Rep. 769. Marsh v. "Burroughs, 1 Woods, 467. 
 
 Brennan v. Burke, •'- Rich. Eq.(S. 7 Hudson v. Plets, 11 Paige (N. V.) 
 
 J00. is:; ; Ten Broeck v. Sloo, 13 How. Pr. 
 
 Thompson v. Nixon, 3 Edw. Ch. (X. Y ) 30. See Garretson v. Kane, 
 
 (N. Y.i 457. S<«- Browning v. Bettis, 87 N. .1. Law, 211. 
 
 8 Paige N y.)568 8 Benson v. Flower, Sir W. Jones' 
 
 >Moorea v. White, 3 Gratt. (Va.) Rep. 215 ; Budson v. Plets, 11 Paige 
 
 139; Caldwell v. Montgomery, 8 Ga. (N. Y.) 183.
 
 §35 SEATS IN STOCK EXCHANGES. 69 
 
 property of the judgment-debtor, accruing before the filing 
 of the creditor's bill, by means of which injury certain 
 property to which the creditor was entitled to resort for 
 the payment of his debts has been disminished in value 
 or destroyed, the right of action appears to be such an 
 interest as may properly be reached and applied to the 
 payment of the complainant's claim. 1 
 
 § 35. Seats in stock exchanges.— Counsel have contended 
 in many cases that a membership of a stock exchange was 
 a mere personal privilege or license, and was not property 
 or a right to property which the creditors of the member 
 could reach. Probably the enormous pecuniary value 
 which not infrequently attaches to such a membership has 
 inspired the courts to consider this so-called privilege as a 
 species of property, the value of which the debtor should 
 not be allowed to withhold from his creditors. It maybe 
 said to differ from the membership of a social club in that 
 the latter has no general value or marketable quality, 
 there being usually no provision for its transfer, and noth- 
 ing remaining after the member's death. Stock exchange 
 memberships, on the other hand, being held for pur- 
 poses of pecuniary gain, may, ordinarily, be bought and 
 sold subject to the regulations of the association, and, 
 after the owner's death, may be disposed of and the 
 proceeds distributed. For these reasons such inter- 
 ests are held to be assets, 2 and, in a certain sense, prop- 
 
 1 Hudson v. Plets, 11 Paige (N. Y.J Grant. 42 L. T. (N. S.) 387, 22 Alb. 
 
 184. See Ten Broeck v. Sloo, 13 How. L. J. 70. In re Gallagher, 19 N. B. 
 
 Pr. (N. Y.) 30. R. 224, it was decided that a license 
 
 ' 2 See Grocers' Bank v. Murphy, 60 or permit to occupy certain stalls in 
 
 How. Pr. (N. Y.) 426; Matter of Washington Market, New York City, 
 
 Ketchum, 1 Fed. Rep. 840 : Ritterband was property that passed to an as- 
 
 v. Baggett, 42 Superior Ct. (N. Y.) signee. But In re Sutherland, 6 Bis 
 
 556; Colby v. Peabody, 52 N. Y. Su- sell, 526, on the contrary, maintains 
 
 perior, 394 ; Piatt v. Jones, 96 N. Y. that a right of membership of a board 
 
 29 ; Smith v. Barclay, 14 Chicago Leg. of trade does not become vested in an 
 
 News, 222; and compare Ex parte assignee. Compare Barry v. Ken-
 
 JO SEATS IN STOCK EXCHANGES. § 35 
 
 erty. 1 In Hyde v. Wood, 2 such a membership is character- 
 ized as an incorporeal right which, upon the bankruptcy of 
 the member, passed, subject to the rules of the stock board, 
 to an assignee. It is said, however, not to be a matter 
 of absolute purchase or sale, but is to be taken with the 
 incumbrances and conditions which its creators imposed 
 upon it. Hence, a provision that debts due other mem- 
 bers shall be first paid is valid and must be carried out. 
 In Powell v. Waldron, 3 Finch, J., one of the most facile 
 judicial writers, declared: "Although of a character 
 somewhat peculiar, its use restricted, its range of pur- 
 chasers narrow, and its ownership clogged with conditions, 
 it was nevertheless a valuable right, capable of transfer 
 and correctly decided to be property. It was something 
 more than a mere personal license or privilege, for it could 
 pass from one to another of a certain class of persons and 
 belong as fully to the assignee as it did to the assignor. 
 That characteristic gave it not only value which might 
 attach to a bare personal privilege, but market-value 
 which usually belongs only to things which are the sub- 
 jects of sale. However it differed from the incorporeal 
 rights earlier recognized and described, it possessed the 
 same essential characteristics. It could be transferred 
 from hand to hand and all the time keep its inherent 
 
 nedy, 11 Abb. Pr. N. S. (N. Y.) 421. seat in the board of brokers is not 
 
 It seems clear that the seat or license property subject to execution in any 
 
 is not liable to legal proceedings on form. It is a mere personal privilege, 
 
 fit ri facias or execution; Eliot v. Mer- perhaps more accurately a license to 
 
 chants' Exchange of St. Louis, 38 Alb. buy and sell at the meetings of the 
 
 L. J. 512. In Thompson v. Adams, board. It certainly could not be 
 
 93 Pa. St. 55, 66, in a per curiam levied on and sold under a ft. fa." 
 
 opinion in which the learned Justice There is a tendency in these cases 
 
 Sharswood participated, it is said: that is to be regretted. 
 
 " The seat is not property in the eye ' Piatt v. Jones, 96 N. Y. 29. 
 
 of t lie law; it could not be seized in 2 94 U. S. 524. See Sparhawk v. 
 
 execution for the debts of the mem- Yerkes, 142 U. S. 12, 12 S. C. Rep. 104. 
 
 bers." Again, it is observed in Pan- 3 89 N. Y. 331. See Piatt v. Jones, 
 
 coast v. Gowen, 93 Pa, St. 71: "A 96 N. Y. 29, and cases cited.
 
 § t,6 TRADE-MARKS. 7 1 
 
 value, and be as freely and fully enjoyed by the permitted 
 purchaser as by the original owner. We should make of 
 it an anomaly, difficult to deal with and to understand, if 
 we fail to treat it as property. The authorities which 
 determine it to be such seem to us better reasoned and 
 more wisely considered than those which deny to it that 
 character, although the subject of ownership, of use, and 
 of sale." The cases upon this subject are fully reviewed 
 by the St. Louis Court of Appeals, in Eliot v. Merchants' 
 Exchange of St. Louis, 1 and the court in conclusion say : 
 "There can be no doubt that the weight of authority is, 
 that the seat of a member in a stock board or merchants' 
 exchange is a species of property not subject to ordinary 
 execution, but which may be reached by equity processes 
 in such a way as to respect the rules of the exchange and 
 the rights of all parties interested, and at the same time, 
 by proceedings in aid of the execution, to compel an insol- 
 vent member to transfer his seat under the rules of the 
 board, and apply the proceeds to the satisfaction of the 
 debts of his judgment-creditor." ~ 
 
 §36. Trade-marks. — It seems to be regarded as settled 
 law that the right to use a trade-mark, in connection with 
 the business in which it has been used, is property which 
 will be protected by the courts, and which may be sold 
 and transferred. 3 In Sohier v. Johnson, 4 the right to use 
 a trade-mark was recognized as property which would 
 
 1 28 Alb. L. J. 512. Cadyi 14 How. 528 ; Powell v. Wald- 
 
 2 In Sparhawk v. Yerkes, 142 U. S. ron, 89 N. Y. 328 ; Belton v. Hatch, 
 12, 12 S. C. Rep. 104, Chief Justice 109 N. Y. 59:5, 17 N. E. Rep. 225 ; 
 Fuller, writes concerning membership Habenicht v. Lissak, 78 Cal. 351, 20 
 seats : "While the property is pecu- Pac. Rep. 874 ; Weaver v. Fisher, 110 
 liar and in its nature a personal privi- 111. 146." 
 
 lege, yet such value as it may possess, 3 Warren v. Warren Thread Co., 28 
 
 notwithstanding the restrictions to Alb. L. J. 278, 134 Mass. 247 ; Enier- 
 
 which it is subject, is susceptible of son v. Badger. 101 Mass. 82 ; Oilman 
 
 being realized by creditors. Ager v. v. Hunnewell, 122 Mass. 139. 
 
 Murray, 105 U. S. 126 ; Stephens v. 4 111 Mass. 238.
 
 REACHING BOOK ROYALTIES. §37 
 
 pass to an assignee, as an incident under a transfer of 
 the business and good-will. 1 The fact that the trade- 
 mark bears the owner's name and portrait does not render it 
 unassignable.^ The same general principle may be found 
 in the English law, and it has been held that under the 
 bankrupt law a trade-mark passes to the assignee of the 
 owner. 8 It may be doubted whether mere personal trade- 
 marks, the use of which, by any person other than the 
 originator, would operate as a fraud upon the public, are 
 subject to this rule. Where, however, the trade-marks are 
 mere signs or symbols designating the place or the estab- 
 lishment at which the goods are manufactured, and not 
 implying any peculiar skill in the originator as the manu- 
 facturer, or importing necessarily that the goods are 
 manufactured by him, they constitute property and pass 
 to an insolvent assignee. 4 
 
 § 37 Reaching book royalties.— An instructive case, illus- 
 trative of the nature of creditors' remedies, is Lord v. 
 Harte. 5 The plaintiff was a judgment-creditor of Bret 
 
 1 Kidd .v. Johnson, 100 U. S. 617 ; tured at a particular establishment and 
 Trade-mark Cases, 100 U. S. 82; War- acquires a special reputation in con- 
 ren v. Warren Thread Co., 28 Alb. L. nection with the place of manufac- 
 J. 278. line, and that establishment is fcrans- 
 
 2 Richmond Nervine Co. v. Rich- f erred either by contract or operation 
 niond, 159 U. S. 293, 16 S. C. Rep. 30 ; of law to others, the right to the use of 
 I i-h Bros. Wagon Co. v. La Belle the trade-mark may be lawfully trans- 
 Wagon Works 82 Wis. 546, ■">2 X. W. ferred with it. Its subsequent use by 
 Rep. 595; Brown Chemical Co. v. the person to whom the establishment 
 Meyer, 139 U. S. 540, 11 S. C. Rep. 625. is transferred is considered as only in- 
 
 8 Leather Cloth Co. v. American dicating that the goods to which it is 
 
 Cloth Co., 11 II. L. Cas. 523; Motley affixed are manufactured at the same 
 
 v. Downman, 3 Myl. &Cr. 1 ; Hudson place and are of the same character as 
 
 \. Osborne, 39 L. J. Ch. 79. those to which the mark was attached 
 
 1 Warren v, Warren Thread Co., 134 by its original designer." See Trade- 
 
 247. Sec ( 'ovcll v. ( 'had wick, L53 .Mark < 'ases, 100 U. S. 82 ; Royal Bak- 
 
 267; Prince's Metallic Paint Co. ing Powder Co. v. Sherrell, 93N. Y. 334; 
 
 v. Prince Mfg. Co., 57 I'd. Rep. 942. Richmond Nervine Co. v. Richmond, 
 
 I,, Kidd v. Johnson. LOO U. S. 617, L59 U. S. 293, 16 S. C. Rep.. 30. 
 
 the court said: "When the trad.- '■ 1 IS Mass. 271. 
 
 mark is affixed to articles manufac-
 
 §33 
 
 PATENT RIGHTS. 
 
 73 
 
 Harte, the well-known writer of prose and poetry, and 
 the bill in question was filed, under the General Statutes 
 of Massachusetts, 1 against Harte and his publishers, to 
 reach moneys due or that might thereafter accrue to him 
 for royalties upon books sold by the publishers. Devens, J., 
 after observing that the defendant Harte had a valu- 
 able interest under an existing contract which could not 
 be attached, said : " Any remedy which the plaintiffs 
 may have by the trustee process, and no other is sug- 
 gested, is uncertain, doubtful and inadequate, and there 
 is, therefore, presented a case for relief by this bill." ' 
 
 § 38 Patent rights. — The monopoly which a patent con- 
 fers is considered as property ; 3 the interest of the 
 patentee may be assigned by operation of law in case of 
 bankruptcy of the patentee, 4 and it may be subjected by 
 a bill in equity to the payment of his judgment debts, 5 
 
 1 Gen. Sts. c. 113, § 2. 
 
 ' 2 See Stephens v. Cady, 14 How. 
 531. 
 
 3 Gayler v. Wilder, 10 How. 477, 
 per Taney, Chief-Justice ; Ager v. 
 Murray, 105 U. S. 126 ; Barnes v. 
 Morgan, 3 Hun (N. Y.) 704. See 
 Railroad Co. v. Trimble, 10 Wall. 367. 
 
 4 Hesse v. Stevenson, 3 Bos. & P. 
 565 ; Bloxam v. Elsee, 1 Car. & P. 558 ; 
 6 Barn. & C. 169 ; Mawman v.Tegg, 2 
 Russ, 385 ; Edelsten v. Vick, 11 Hare, 
 78 ; Campbell v. City of Haverhill, 155 
 U. S. 619, 15 S. C. Rep. 217, and cases 
 cited ; Barton v. White, 144 Mass. 281, 
 10 N . E. Rep. 840. In the latter case 
 the court say (p. 283): " In Stearns 
 v. Harris, 8 Allen (Mass.), 597, it was 
 said that ' the words of the insolvent 
 law, describing and enumerating the 
 property and rights of property which 
 pass by the assignment, are large 
 and comprehensive, and have always 
 been liberally construed by the court, 
 so as to include every valuable right 
 in property, real or personal, not 
 
 clearly excepted, whether legal in- 
 equitable, absolute or conditional, 
 which could have been enforced by 
 the debtor in any kind of judicial 
 process.' The defendants further con- 
 tend, though without laying very 
 much stress upon this ground of argu- 
 ment, that the state has not the power 
 to enact a statute which has the effect 
 to pass a title to letters-patent of the 
 United States ; but we have no doubt 
 upon this point." But, compare Ash- 
 croft v. Walworth, 1 Holmes, 152; 
 Gordon v. Anthony, 16 Blatchf. 234 ; 
 Carver v. Peck, 131 Mass. 291 ; 
 Cooper v. Gunn, 4 B. Mon. (Ky.) 594. 
 See Ager v. Murray, 105 U. S. L26. 
 
 5 Ager v. Murray, 105 U. S. 126 ; 
 Campbell v. City of Haverhill. 155 U. 
 S. 619, 15 S. C. Rep. 217; Barton v. 
 White, 144 Mass. 281, 10 N. E. Rep. 
 840 ; Gillette v. Bate, 10 Abb. N. C. 
 (N. Y.) 38; Gorrell v. Dickson, 26 
 Fed. Rep. 454. But see Greene v. 
 Keene, 14 R. I. 388.
 
 74 PATENT RIGHTS. § 38 
 
 and may be taken by a receiver, 1 or assignee in insol- 
 vency. 2 Lord Alvaney, referring to the proposition that 
 an invention was an idea or scheme in a man's head, 
 which could not be reached by process of law, said : " But 
 if an inventor avail himself of his knowledge and skill, 
 and thereby acquire a beneficial interest, which may be 
 the subject of assignment, I cannot frame to myself an 
 argument why that interest should not pass in the same 
 manner as any other property acquired by his personal 
 industry." 3 And in Stephens v. Cady, 4 Justice Nelson 
 said in relation to the incorporeal right secured by the 
 statute to an author to multiply copies of a map by the 
 use of a plate, that, though from its intangible character 
 it was not the subject of seizure or sale at common law, 
 it could be reached by a creditor's bill and applied to the 
 payment of the author's debts. 5 If the courts should 
 declare patent rights exempt from appropriation, it would, 
 as suggested in Sawin v. Guild," be practicable for a 
 debtor to lock up his whole property, however ample, 
 from the grasp of his creditors, by investing it in profit- 
 able patent rights, and thus to defeat the administration 
 of justice. 7 We find the statement, advanced, however, 
 that it is the patent only which gives the exclusive prop- 
 erty, and while the right is inchoate it is at least doubtful 
 whether it has the characteristics of property, such as to 
 justify a compulsory transfer by the debtor. 8 
 
 Tnre Eeach, 14 R. I. 571. Cal. 520; Stevens v. Gladding, 17 
 
 Barton v. White, Ml Mass. 281, How. 447 ; Massie v. Watts, 6 Cranch, 
 
 10 X. E. Rep. 840; Campbell v. City 148; Storm v. Waddell, 2 Sandf. Ch. 
 
 of Baverhill, 155 U. S. 619, 15 S. < '. (X. Y.) 494 
 
 Rep. 217. 6 1 Gall. 485. 
 
 Besse v. Stevenson, 3 Boss. & P. 'See Barnes v. Morgan, 3 Hun (N. 
 
 565. Y.) 704; Campbell v. City of Haver- 
 
 '11 Bow. 531; Sparhawk v. hill, 155 U. S. 619, 15 S. C. Rep. 217. 
 
 Yerkes, 142 U. S. 12, 12 S. C. Rep. 104. Gillette v. Hate, 86 X. Y. 94; 
 
 > Sadden v. Spader, 20 .Johns. Besse v. Stevenson, 3 Bos. & P. 565. 
 
 (N. Y.) 564; Gillette v. Bate, 86 X. Compare Ashcroft v. Walworth, 1 
 
 V.sT; Pacific Bank \. Robinson, 57 Holmes, 152; Campbell v. James, 18
 
 §39 POWERS, WHEN ASSETS FOR CREDITORS. 75 
 
 § 39. Powers, when assets for creditors. — Chief-Justice 
 Gray, in delivering the opinion of the Supreme Judicial 
 Court of Massachusetts, 1 said : " It was settled in the 
 English Court of Chancery, before the middle of the last 
 century, that where a person has a general power of 
 appointment, either by deed or by will, and executes this 
 power, the property appointed is deemed in equity part 
 of his assets, and subject to the demands of his creditors 
 in preference to the claims of his voluntary appointees or 
 legatees. 3 The rule perhaps had its origin in a decree of 
 Lord Somers, affirmed by the House of Lords, in a case 
 in which the person executing the power had in effect 
 reserved the power to himself in granting away the 
 estate. 3 But Lord Hardwicke repeatedly applied it to 
 cases .of the execution of a general power of appointment 
 by will of property of which the donee had never had any 
 ownership or control during his life ; and, while recog- 
 nizing the logical difficulty that the power, when executed, 
 took effect as an appointment, not of the testator's own 
 assets, but of the estate of the donor of the power, said 
 that the previous cases before Lord Talbot and himself 
 (of which very meagre and imperfect reports have come 
 down to us) had established the doctrine, that when there 
 was a general power of appointment, which it was 
 absolutely in the donee's pleasure to execute or not, he 
 might do it for any purpose whatever, and might appoint 
 the money to be paid to his executors if he pleased, and, 
 if he executed it voluntarily and without consideration for 
 
 Blatchf. 92 : Prime v. Brandon Mfg. ■ See Olney v. Balch, L54 Mass. 
 
 Co., 16 Blatch, 453 ; Clan Ranald v. 318, 28 N. E. Rep. 258. Compare 
 
 Wyckoff, 41 N. Y. Superior, 530; O'Donnell v. Barbey, 139 Mass. 453 ; 
 
 Potter v. Holland, 4 Blatchf. 206; Wales v. Bowdish, 61 Vt. 33, 1 1 Atl. 
 
 Barnes v. Morgan, 3 Hun, (N. Y.) 703. Rep. 1000. 
 
 1 Clapp v. Ingraham, 126 Mass. 200 ; 3 Thompson v. Towne, Prcc. Ch. 52, 
 
 Olney v. Balch, 154 Mass. 318, 28 N. 2 Vern. 319. 
 E. Rep. 258 : Brandies v. Cochrane, 
 112 U. S. 352.
 
 7 6 
 
 POWERS, WHEN ASSETS FOR CREDITORS. 
 
 §39 
 
 the benefit of third persons, the money should be con- 
 sidered part of his assets, and his creditors should have 
 the benefit of it. 1 The doctrine has been upheld to the 
 full extent in England ever since. 3 Although the sound- 
 ness of the reasons on which the doctrine rests has been 
 impugned by Chief-Justice Gibson arguendo, and doubted 
 by Mr. Justice Story in his Commentaries, the doctrine 
 is stated both by Judge Story and Chancellor Kent as 
 well settled ; and it has been affirmed by the highest 
 court of New Hampshire, in a very able judgment, 
 delivered by Chief-Justice Parker, and applied to a case in 
 which a testator devised property in trust to pay such 
 part of the income as the trustees should think proper to 
 his son for life ; and after the son's death, to make over 
 the principal with any accumulated income, to such per- 
 sons as the son should by will direct. 3 A doctrine so 
 just and equitable in its operation, clearly established by 
 the laws of England before our Revolution, and sup- 
 ported by such a weight of authority, cannot be set aside 
 by a court of chancery because of doubts of the technical 
 soundness of the reasons on which it was originally 
 established." Cases establishing this general rule are 
 numerous. 4 The jus disponcndi is to be considered as 
 
 1 Townshend v. Wildham, 2 Ves. 
 Sen. 1, !), 10; Ex parte Caswell, 1 
 A t lv . 559, 560; Bainton v. Ward, 7 
 Ves. 503. note ; cited 2 Ves. Sen. 2, 
 and Belt's Suppl't, 243 : 2 Atk. 172 ; 
 Pack v. Bathurst, 3 Atk. 269. 
 
 2 Chance on Powers, c. 15, § 2 ; 2 
 Sugden onPowers (7th ed.)27; Flem- 
 ing v. Buchanan, 3 De G. M. & G. 
 070. 
 
 8 Commonwealth v. Duffield, 12 
 Penn. St. 277, 27!) 381 ; Story's Eq. 
 Jur. .' L76, and note; 4 Kent's Com, 
 339, 340; Johnson v. Cushing, 15 N. 
 H. 298. 
 
 1 Smith v. (Jarey, 2 Dev. & Bat. 
 
 Eq. (N. C.) 49: Mackason's Appeal, 
 42 Pa. St. 338 ; TaUmadge v. Sill, 21 
 Barh. (N. Y.) 51 (but compare Cutting 
 v. (Jutting, 86 N. Y. 522) ; 2 Chance 
 on Powers, £ 1817; Whittington v. 
 Jennings, 6 Simons, 493 : Lassells v. 
 Cornwallis. 2 Vein. 465 ; Bainton v. 
 Ward, 2 Atk. 172; Cackv. Bathurst, 
 3 Atk. 269; Troughton v. Troughton, 
 3 Atk. 656; Townshend v. Windham, 
 2 Ves. Sen. 1 ; Jenny v. Andrews, 6 
 Madd. 201 ; Ashfield v. Ashfield, 2 
 Vein. 287; Cutting v. Cutting, 20 
 Huu (N. Y.) 366; reversed, in part, 
 in 86 N. Y. 522 ; George v. Milbanke, 
 9 Ves. Jr. 196 ; Flemming v.
 
 39 
 
 POWERS, WHEN ASSETS FOR CREDITORS. 
 
 77 
 
 the property itself, 1 and the general power of disposition 
 is in effect property. 3 In Williams v. Lomas, 3 the court 
 said: "Jenney v. Andrews, 4 which has been followed by 
 other authorities, 5 decides this : that where a person 
 having a general power of appointment by will makes an 
 appointment, the appointee is a trustee for the creditors, 
 and the appointed fund is applicable to the payment of 
 the debts of the donee of the power." And it has been 
 observed that there is no reason in the nature of things 
 why a gift or bequest of personal property, with a power 
 of disposition, should not be measured by the same rule 
 as a grant or devise of real estate with the same power. 
 
 Buchanan, 3 DeG., M. & G. 976; 
 Palmer v. Whitmore, 2 Cr. & M. [in 
 note] 131 ; Nail v. Punter, 5 Sim. 555. 
 As to creditor's right to enfoi*ce the 
 execution of a power, examine Rogers 
 v. Ludlow, 3 Sand. Ch. (N. Y.) 104, 
 108 ; Kinnan v. Guernsey, 64 How. 
 Pr. (N. Y.) 253. In Brandies v. Coch- 
 rane, 112 U. S. 352, the court say : 
 " It is indeed a rule well established 
 in England, and recognized in this 
 country, that where a person has a 
 general power of appointment, either 
 by deed or by will, and executes this 
 power, the property appointed is 
 deemed, in equity, part of his assets, 
 and subject to the demands of his cred- 
 itors in preference to the claims of 
 his voluntary appointees or legatees." 
 
 1 Holmes v. Coghill, 12 Ves. 206. 
 See Piatt v. Routh, 3 Beav. 257. 
 
 2 Bainton v. Ward, 2 Atk. 172. 
 See Adams on Equity, 99, note 1. In re 
 Harvey's Estate, L. R. 13 Ch. Div. 216; 
 Crooke v. County of Kings, 97 N. Y. 
 457. Mr. May says : ;< The exercise 
 of a general power of appointment, 
 either of land (Townshend v. Wind- 
 ham, 2 Ves. Sr. 1), or a sum of 
 money (Pack v. Bathurst, 3 Atk. 269), 
 may be fraudulent and void under 
 
 the statute, but where a man has 
 only a limited or exclusive power of 
 appointment of course it is different. 
 He never had any interest in the 
 property himself which could have 
 been available to a creditor, or by 
 which he could have obtained credit." 
 May on Fraud. Con v. p. 29. See 
 Sims v. Thomas, 12 Ad. &. E. 536 ; 
 Hockley v. Mawbey, 1 Ves. Jr. 143, 
 150. 
 
 3 16 Beav. 3. 
 
 4 6Madd. 264. 
 
 5 2 Sugden on Powers (6th ed.) 29 ; 
 1 Sugden on Powers (6th ed.) 123. 
 
 6 Cutting v. Cutting, 86 N. Y. 547 ; 
 Hutton v. Benkard, 92 N. Y. 295. 
 The reservation of a power of revoca- 
 tion or appointment to other uses 
 does not affect the validity of a con- 
 veyance until the power is exercise. 1, 
 nor does it tend to create an 
 imputation of bad faith on the tran- 
 sact ion. See Huguenin v. Baseley, 
 14 Ves. 273 ; Coutts v. Acworth, L. 
 R. 8 Eq. 558 ; Wallaston v. Tribe, L. 
 R. 9 Eq. 44 ; Everitt v Everitt, L. R. 
 10 Eq. 405 ; Hall v. Hall. L. R. 14 Eq. 
 365; Phillips v. Mullings, L. R. 7 Ch. 
 App. 244; Hall v. Hall, L. R. 8 
 Ch. App. 430 : Toker v. Toker, 3 De
 
 78 POWERS IN NEW YORK. § 40 
 
 § 40. Statutory change as to powers in New York. — The 
 principle which we have been considering did not meet 
 the entire favor of the revisers of the statutes of New 
 York, and the rule just laid down seems to have been 
 practically overturned by statute in that State. 1 The 
 facts in Cutting v. Cutting, a case in which the statutes 
 relating to the abolition of powers in New York were 
 construed, were as follows : C. gave real and personal 
 estate to her executor to collect the income during the 
 life of her son and apply it to his use, and after his death 
 to transfer the estate to the person the son might desig- 
 nate by will. The son having made the appointment, it 
 was held that the estate was not chargeable after the 
 son's death with a judgment obtained against him in his 
 lifetime. It will be apparent at a glance that the result 
 of the legislation in New York as interpreted in this case, 
 constitutes an important innovation upon what was a set- 
 tled principle of equity, and places beyond the reach of 
 creditors property which equity considered should be sub- 
 ject to their remedies. 3 A policy which enables debtors 
 to contract obligations, and defeat their payment by exer- 
 cising a power of appointment in favor of a gratuitous 
 appointee, deprives creditors of an important source of 
 relief, and tends to establish in the debtor rights over 
 property which the creditor cannot reach, a result to be 
 universally deplored. 3 
 
 G., .1. & S. 487. The power is not an Clifton, 101 U. S. 225, per Field, J.; 
 
 Lnteresl in the property which can be Brandies v. Cochrane, 112 U. S. 353. 
 
 transferred t'> another, or Hold on 'Cutting v. Cutting, 20 Hun (N. 
 
 ution, '>r devised by will. The Y.) 367, on appeal, 86 X. Y. 537; 
 
 grantor could exercise 1 1 1 « - power Crooke v. County of Kings, 07 X. Y. 
 
 either by deed or will, hut he could 457. See Hume v. Randall, 141 X. Y. 
 
 Dot vesl the power in any other per- 499, 36 N. E. Rep. 402. 
 
 3on to be thus executed. Nor is the ' See § 39, and cases cited, 
 
 power a chose Inaction; nor does it :; Where the debtor is entitled to 
 
 constitute assets of a bankrupl which the proceeds of lands arising under a 
 
 will vest in an assignee. Jones v. power, such lands or the proceeds
 
 § 41 GIFTS OF SMALL VALUE. 79 
 
 § 41. Gifts of small value. — The Supreme Court of 
 Maine 1 recognize the rule already adverted to that gifts 
 cannot be regarded as fraudulent if, from their almost 
 infinitesimal value, the rights of creditors would not be 
 impaired. In French v. Holmes, 2 it appeared that the 
 father made a gift to his child of a lamb which the ewe 
 refused to recognize. The court observed that if the 
 lamb had been attached it would not have sold for a sum 
 sufficient to pay the fees of the officer making the sale, 
 much less the costs of obtaining the judgment. Gifts of 
 insignificant intrinsic value, made from time to time by a 
 husband to his wife, will not be avoided because he dies 
 insolvent. 3 If the property was exempt, the gift was 
 clearly no interference with the rights of creditors. The 
 court further argued : " Now could such a gift hinder, 
 delay, or defraud creditors? The fraudulent intent is to 
 be collected from the comparative value and magnitude 
 of the gift. Can any one believe the existence of a 
 fraudulent intent?" The opinion cited with approval 
 Hopkirk v. Randolph, 4 where the gift consisted of two 
 negro girls and a riding horse. The learned Chief-Justice 
 Marshall in that case seemed to consider that trivial gifts, 
 made without any view to harm creditors, and with inten- 
 tions obviously fair and proper, ought to be exempted 
 from the general rule in favor of creditors. " They do 
 not," continued the Chief-Justice, "much differ from wed- 
 ding clothes, if rather more expensive than usual, from 
 
 cannot be taken on execution. The attaches to the proceeds and does not 
 
 equitable interests of the debtor follow the land. Sayles v. Best, 140 
 
 therein must be reached in equity, N. Y. 368; Ackerman v. Gorton, 07 
 
 and the return of execution is a con- N. Y. 63. 
 
 dition precedent to maintaining the ' French v. Holmes, 67 Me. 193 ; 
 
 suit. Harvey v. Brisbin, 143 N. Y. Klosterman v. Vader. 6 Wash. 99, 32 
 
 151, 38 N. E. Rep. 108. Where the Pac. Rep. 1055. 
 
 debtor is vested with the title to land 2 67 Me. 193. See § 23. 
 
 subject to a power to be exercised for 3 Estate of Gross. 19 Phila (Pa.) 80. 
 
 his benefit a judgment against him 4 2 Brock. 140.
 
 So DEBTS FORGIVEN OR CANCELLED. §§42,43 
 
 jewels, or an instrument of music, given by a man whose 
 circumstances justified the gift. I have never known a 
 case in which such gifts so made have been called into 
 question." ' 
 
 § 42. Debts forgiven or cancelled. — In Sibthorp v. 
 Moxom, 2 it was said that where a testator gave or for- 
 gave a debt this was a testamentary act, and would not be 
 good as against creditors. 3 Manifestly a cancellation by 
 an insolvent of a live and subsisting asset, is a fraud upon 
 creditors. Hence, where a debtor gave up and cancelled 
 without payment, a note held by him against a third 
 party, the court very promptly decided that, after the 
 debtor's decease, his administrator might ignore the can- 
 cellation, and sue upon the note for the benefit of 
 creditors. 4 Martin v. Root 5 is a pointed illustration of 
 a different phase of this doctrine. One Larned conveyed 
 a farm to Root and others, and furnished the grantees 
 the means with which to remove the incumbrances upon 
 it, the conceded object of the transaction being to keep 
 the farm out of the reach of Larned's creditors. Root 
 gave Larned a note for $5,072.43, and at the same time 
 took back a written promise from Larned that the note 
 should never be collected. Larned having died insolvent, 
 his administrator was allowed to recover on the note, and 
 the agreement that the note should not be collected was 
 held void in respect to creditors. 
 
 § 43. Enforcing promises of third parties. — The doctrine 
 
 • Partridge v. Gopp, Ami.. 596. 8 Compare, generally as to the efted 
 
 Compare Eanby v. Logan, I Duv. of cancellation, Martin v. Root, I? 
 
 (Ky.) 342; Garrison v. Monaghan, 33 Mas , 322, per Chief-Justice Parker; 
 
 Pa. St 232; Estate of Gross, 19 Phila. McGay v. Keilback, II A.bb. Pr. iX. 
 
 JO, reviewing the cases, Lush v. Y.i 142; Wise \. Tripp, 13 Me. 12. 
 
 Wilkinson, 5 Ves. 384; Chambers v. 'Tolman v. Marlborough, 3 N. H. 
 
 Spencer, 5 Watte (Pa.) 104. See §§ 57. 
 
 15, 23, and note. 5 17 Mass. 322. 
 
 -:; Alkyn
 
 § 43 PROMISES "I 1 MIKl. PAR III-. 8l 
 
 of Lawrence v. Fox, 1 and cases embodying the general 
 principle that where one person, for a valuable considera- 
 tion, engages with another, by a simple contract, to do 
 j ome act for the benefit of a third person, the latter, who 
 would enjoy the benefit of the act if performed, may 
 maintain an action for breach of the engagement/- has 
 been successfully invoked in aid of creditors. Tims in 
 Kingsbury v. Earle, 3 it appeared that a father had con- 
 veyed* lands to his sons upon their orally agreeing, in 
 consideration of the conveyance, to pay all his debts. 
 The court held that the creditors of the father might 
 avail themselves of the agreement, and bring actions 
 founded on the promise against the sons to recover 
 debts, even though the amount of the debts exceeded 
 the value of the land, and that the consideration named 
 in the deed would not determine its actual value. 
 An agreement of this character is not a promise to pay 
 the debt of another within the statute of frauds. And 
 where partnership assets are assigned, and as part of the 
 consideration the purchaser agreed to pay the firm debts, 
 
 '20 N. Y. 268. See Prime v. Koeh- Y. 236: Hall v. Marston, 17 Mass. 
 
 ler, 77 N. Y. 91; Gifford v. Corrigan, 575 ; Cross v. Truesdale, 28 Ind. 1 1 ; 
 
 117 N. Y. 263, 22 N. E. Rep. 756 ; Scott v. Gill, 19 Iowa, 187; Rice v. 
 
 Clark v. Howard, 150 N. Y. 238. Savery, 22 Iowa, 470; Devol v. M, 
 
 2 Hand v. Kennedy, 83 N. Y. 154 ; Intosh, 23 Ind. 529 ; Allen v. Thomas. 
 
 Wager v. Link, 134 N. Y. 122, 31 N. 3 Met. (Ky.) 198 : Jordan v. White, 20 
 
 E. Rep. 213; First Nat. Bk. v. Chal- Minn. 91; Rogers v. Gosnell, 58 Mo. 
 
 mers, 144 N. Y. 432, 39 N. E. Rep. 590; Wiggins v. McDonald, IN Cal. 
 
 331; Clark v. Howard, 150 N. Y. 238; 126 ; Miller v. Florer, 15 Ohio St. 151 ; 
 
 Burr v. Beers, 24 N. Y. 178 ; Glen v. Green v. Richardson, 4 Col. 584 ; Hank 
 
 Hope Mutual Life Ins. Co., 56 N. Y. of the Metropolis v. Guttschlick, 11 
 
 381; Ricard v. Sanderson, 41 N. Y. Peters, 31; Bradwell v. Weeks, 1 
 
 179; Secorv. Lord, 3 Keyes (N. Y) Johns. Ch. (N. Y.) 206. Compare 
 
 525; Thorp v. Keokuk Coal Co., 48 Mtna, Nat. Bank. v. Fourth Nat. Bank, 
 
 N. Y. 253: Campbell v. Smith, 71 N. 46 N. Y. 82 ; Lean v. Edge, M X. Y. 
 
 Y. 26; Van Schaick v. Third Ave. R. 514 ; Simson v. Brown, (is X. Y. 
 
 R. Co., 38 N. Y. 346 ; Coster v. Mayor Belknap v. Bender, 75 X. Y. 449. 
 etc., 43 N. Y. 411 ; Barker v. Bradley, 3 27 Hun (N. Y., 141, cf. O'Neil v. 
 
 42 N. Y. 319 ; Vrooman v. Turner, 69 Hudson Valley [ce Co., M Sun (N. 
 
 N. Y. 284 ; Garnsey v. Rogers, 47 N. Y.) 105, 26 N. Y. Supp. 598. 
 
 6
 
 82 PROMISES OF THIRD PARTIES. § 43 
 
 any creditor may avail himself of the promise and sue the 
 purchaser for the amount of his claim j 1 and if, under 
 such circumstances, a bond is taken, the creditors may 
 get the benefit of it.~ But the principal running through 
 these cases is not universally recognized. It does not 
 fully obtain in the English cases or in Massachusetts. In 
 the latter Commonwealth, Gray, J., in the course of an 
 opinion, said : " The general rule of law is, that a person 
 who is not a party to a simple contract, and from whom no 
 consideration moves, cannot sue on the contract, and con- 
 sequently that a promise made by one person to another, 
 for the benefit of a third person who is a stranger to the 
 consideration, will not support an action by the latter." 3 
 It is foreign to the scope of this treatise to fully discuss in 
 all its bearings the rule allowing third parties to enforce 
 these promises made for their benefit. It certainly has 
 obtained a deep and wide foundation in our law; its 
 operation avoids circuity of action, reduces the expense 
 and volume of litigation, and brings the real claimant and 
 party beneficially interested in the controversy before the 
 court. The arguments against its adoption, based upon 
 common-law theories and rules, are inequitable and 
 technical, and lead to a harsh result. 4 
 
 1 Sanders v. Clason, 13 Minn. 379 ; the latter would sell the property 
 
 Barlow v. Myers, 6 T. & C. (N. Y.) and apply the proceeds upon the 
 
 183 ; Meyer v. Lowell, 44 Mo. 328. plaintiff's execution. The receiver 
 
 1 Kimball v. Nbyes, 17 Wis. 695; realized on the sale. The plaintiff 
 
 Devol v. Mcintosh, 23 Ind. 529. Es- in the execution Drought this action 
 
 pecially Claflin v. Ostrom, 54 N. Y. against the receiver on the parol 
 
 581. promise made to the sheriff for plain- 
 
 3 Exchange Bank of St. Louis v. tiff's benefit. The court decided that 
 
 Rice, 107 Mass. 41. although the promise was not made 
 
 4 In Beckfr v. Torrance, 31 N. Y. totheplaintiffdirectly.it was avail- 
 
 631-643, it appeared thai the plaintiff able to him on the principle of Law- 
 
 had levied upon certain property of rencev. Fox, 20 N. Y. 268, and Burr 
 
 tin defendant; subsequently ;i re- v. Beers, 24 N. Y. 178, and that he 
 
 ceiver was appointed al tin- instance had the right to adopt and enforce the 
 
 of another creditor. The sheriff re- promise inst cud of proceeding directly 
 
 1 the levy upon receiving a against the sheriff, 
 promise from the receiver that
 
 44 
 
 TRACING THE FUND. 
 
 83 
 
 44. Tracing the fund. — It is a clearly established prin- 
 ciple in equity jurisprudence that whenever a trustee, has 
 been guilty of a breach of trust, and has transferred the 
 property by sale or otherwise to any third person, the cestui 
 que trust has a full right to follow such property into the 
 hands of the third person, unless the latter stands in the 
 position of a bona fide purchaser for valuable consideration 
 without notice ; and if the trustee has invested the trust 
 property or its proceeds in any other property into which 
 it can be distinctly traced, the cestui que trust may follow 
 it into the new investment. 1 This doctrine has been ap- 
 propriated and applied to cases of property alienated in 
 fraud of creditors ; and it has been expressly held that a 
 complaining creditor has a right to follow the fund result, 
 ing from the covinous alienation, into any property in 
 
 1 Oliver v. Piatt, 3 How. 401 ; Mc- 
 Leod v. First Nat. Bank, 42 Miss. 99 ; 
 Jones v. Shaddock, 41 Ala. 262 ; La- 
 throp v. Bainpton, 81 Cal. 17 ; Story's 
 Eq. Jur. § 1258 ; Mansellv. Mansell, 2 
 P. Wins. 079 ; Dewey v. Kelton, 18 
 N. B. R. 218 ; Pennell v Deffell, 4 De 
 G., M. & G. 372 ; Frith v. Cartland, 2 
 Hem. & M. 417, 420 ; In re Hallet's 
 Estate, Knatchbull v. Hallet, L. R. 13 
 Ch. D. 096 ; Farmers & Mechanics' 
 Nat. Bank. v. King, 57 Pa. St. 202. 
 Compare Smith v. Bowen, 35 N. Y. 
 83 ; Lyfordv. Thurston, 10 N. H. 399 ; 
 Barr v. Cubbage, 52 Mo. 404 ; Hooley 
 v. Gieve, 9 Abb. N. C. (N. Y.) 8. See 
 § 28. Examine especially National 
 Bank v. Insurance Co., 104 U. S. 54 ; 
 Jones v. Van Doren, 130 U. S. 691, 
 9 S. C. Rep. 085 ; Union Stock Yards 
 Bank v. Gillespie, 137 U. S. 421, 11 S. 
 C. Rep. 118 ; Spokane Co. v. Clark, 61 
 Fed. Rep. 538 ; Peters v. Bain, 133 U. 
 S. 070, 10 S. C Rep. 354. It is said 
 by Mr. Justice Bradley in Freling- 
 huysen v. Nugent, 30 Fed. Rep. 229, 
 
 239. " Formerly the equitable right of 
 following misapplied money or other 
 property into the hands of the parties 
 receiving it, depended upon the ability 
 of identifying it ; the equity attaching 
 only to the very property misapplied. 
 This right was first extended to the 
 proceeds of the property, namely, to 
 that which was procured in place of 
 it by exchange, purchase, or sale. 
 But if it became confused with other 
 property of the same kind, so as not 
 to be distinguishable, without any 
 fault 011 the part of the possessor, the 
 equity was lost. Finally, however, 
 it has been held as the better doctrine 
 that confusion does not destroy the 
 equity entirely, but converts it into a 
 charge upon the entire mass, giving 
 to the party injured by the unlawful 
 diversion a priority of right over the 
 other creditorsof the possessor. This 
 is as far as the rule has been carried." 
 Quoted in Peters v. Bain, 133 U. S. 
 094, 10 S. C. Rep. 354.
 
 84 INCOME OF TRUST ESTATE. § 45 
 
 which it was invested, so far as it can be traced, 1 But in 
 creditors' suits the subject-matter of pursuit should be 
 something so specific that, as to it, either in law or in equity, 
 the plaintiff's judgment or execution, or the filing of the 
 bill, or the appointment of a receiver, will create a lien 
 or make a title. 2 In Gillette v. Bate, :i the fraudulent 
 grantee had taken stock in a corporation in exchange for 
 the property fraudulently transferred, and it was held 
 that creditors could reach the stock, although it had 
 increased in value. 4 Where property is obtained by 
 fraud, and the proceeds of a sale of it, such as notes, are 
 identified in the hands of a voluntary assignee of the 
 fraudulent vendee, a court of equity may reach such pro- 
 ceeds for the defrauded vendor. 5 So a defrauded ven- 
 dor may follow the proceeds of his goods in the hands of 
 a sheriff who has levied on them, 6 and a cestui que trust 
 may recover the proceeds of a life-insurance policy taken 
 out by a defaulting trustee with the trust moneys in the 
 name of the trustee's wife. 7 To sustain a claim for pay- 
 ment out of a fund in the hands of an assignee or receiver 
 upon the ground of fraud, it must appear that the fund 
 was increased by having in its mass the very thing parted 
 with or its proceeds. 8 
 
 §45. Income of trust estate. — Williams v. Thorn 9 
 
 1 Clements v. Moore, 6 Wall. 315, 6 Converse v. Sickles, 146 N. Y. 
 31 G. See Chalfont v. Grant, 1 Am. 200, 40 N. E. Rep. 777. 
 
 Insolv. R. 251 ; Marsh v. Burroughs, ' Holmes v. Gilman, 138 N. Y. 369, 
 
 1 Woods, 463 ; Solinsky v. Lincoln 34 N. E. Rep. 205. 
 
 Savings Bank, 85 Tenn. 372. 8 City Bank of Hopkinsville v. 
 
 2 Ogden v. Wood, 51 How. Pr. (N. Blackmore, 43 U. S. App. 617 ; Boone 
 Y.)375. See §28. Co. Nat. Bank v. Latimer, 67 Fed. 
 
 8 10 Abb. N. C. (N. Y.) 92. Rep. 27; Cragie v. Hadley, 99 N. 
 
 4 See Steere v. Hoagland, 50 111. 377. Y. 131, 1 N. E. Rep. 537. 
 
 Compare Phipps v. Sedgwick, 95 .U. '■> 70 N. Y. 270. See McEvoy v. 
 
 S. 3. Appleby, 27 Hun (N. Y.) 44; Tolles 
 
 American Sugar Refining I !o. v. v. Wood, ( .)U X. Y. 616; Wetmore v. 
 
 Fancher, 145 N. V. 553,40 N. E. Rep. Wetmore, 149 N. Y. 520. Compare 
 
 206. Spindle v. Shreve, 111 U. S. 546, 4 S.
 
 § 45 INCOME OF TRUST ESTATE. 85 
 
 firmly established the doctrine, in New York State at 
 least, that the income of a trust fund enjoyed by the 
 debtor beyond a sum considered necessary for the actual 
 support of himself, his wife and infant children, 1 may be 
 reached by judgment-creditors, and, like the rest of the 
 debtor's estate, such surplus income is liable to be taken 
 for the payment of creditors. This doctrine was not 
 established without a struggle, and debtors are still con- 
 stantly seeking to circumvent it. 3 The Chancellor 
 observed in Hallett v. Thompson 3 that it was contrary 
 to sound policy to permit a person to have the ownership 
 of property for his own purposes, and be able at the same 
 time to keep it from his creditors. A creditor, by filing 
 a bill, acquires a lien on such surplus income superior to 
 the claims of general creditors or assignees of the 
 beneficiary. 4 In Williams v. Thorn, 5 Rapallo, J., said: 
 " By the analogy which courts of justice have always 
 endeavored to preserve between estates or interests in 
 land, or the income thereof, and similar interests in 
 personal property, the right of a judgment-creditor to 
 reach the surplus rents and profits of land, beyond what 
 is necessary for the support and maintenance of the 
 debtor and his family, entitles him to maintain a creditor's 
 bill which will reach a similar interest of the debtor in the 
 surplus income of personal property held by another for 
 his use and benefit ; but not that part of the income 
 
 C. Eep. 522; Nichols v. Eaton, 91 U. Hun (N. Y.) 117; McEvoy v. Ap- 
 
 S. 716 ; Cutting v. Cutting, 86 N. Y. plehy, 27 Hun (N. Y.) 44. 
 
 546. If in a suit to which the benefi- -' See Nichols v. Eaton, 91 U. S. 
 
 ciary is a party a trust has been de- 716 ; Spindle v. Shreve, 111 U. S. 542, 
 
 clared valid, the decree is binding on 546, 4 S. C. Rep. 522 ; Wetmore v. 
 
 the judgment creditors. Pray v. Wetmore, 149 N. Y. 520 ; also Chap. 
 
 Hegeman, 98 N. Y. 351 ; Cook v. Lowry, XXIII. 
 
 95 N. Y. 111. 5 Paige N. Y. 586. 
 
 1 Wetmore v. Wetmore, 149 N. Y. 4 Tolles v. Wood, 99 N. Y. 616, 1 N. 
 
 529 ; Tolles v. Wood, 99 N. Y. 616 ; E. Rep. 251. 
 
 Bunnell v. Gardner, 4 App. Div. (N. 5 70 N. Y. 273. 
 Y.) 321 ; Andrews v. Whitney, 82
 
 86 INCOME OF TRUST ESTATE. § 45 
 
 which may be necessary for the support of the judgment- 
 debtor." The debtor's station in life, the manner in 
 which he has been reared and educated, his habits and 
 the means he may have to aid in his support are consid- 
 ered. 1 The doctrine of Williams v. Thorne, with refer- 
 ence to reaching surplus trust income seems to have been 
 acknowledged in the earlier New York cases, both as to 
 the income of realty and personalty 2 though there is a 
 dictum by Wright, J., in Campbell v. Foster, 3 denying 
 that the income of the cestui que trust can be diverted to 
 creditors. 4 The confusion introduced into this branch of 
 the law in New York State which led to the general, but 
 erroneous, belief that a debtor's trust income, though 
 fabulous in amount, was not, in any form, available to 
 creditors, was partially attributable to the fact that the 
 unsuccessful actions had been instituted by receivers in 
 supplementary proceedings, 5 as to whom the courts held 
 the right to reach income did not pass until it had actu- 
 ally accumulated. But where the judgment creditor 
 sues, not only the income accumulated in the trustees' 
 hands, 7 which may also be reached by supplementary 
 proceedings, but the future income, above the sum found 
 necessary for the support and use of the cestui que 
 trttst, and those legally dependent upon him, may be 
 impounded. 8 Hann v. Van Voorhis, 9 holding that only 
 
 1 Wetmore v. Wetmore, 149 N. Y. Scott v. Nevius, 6 Duer (N. Y.) 672 ; 
 520. Locke v. Mabbett, 2 Kcyes (N. Y.) 
 
 2 See Rider v. Mason, 4 Sandf. Ch. 457 ; Campbell v. Foster, 35 X. Y. 
 (N. Y.) 351 ; Sillick v. Mason, 2 Barb. 361. 
 
 Ch. (N. Y.) 79 ; Braiuhall v. Ferris, 14 7 The beneficiary may assign ac- 
 
 N. Y. 41 : Scott v. Nevius, 6 Duer (N. crued income. Tolles v. Wood, 99 N. 
 
 X.) 072 : Graff v. Bonnctt, 31 N. Y. 9. Y. 01(5, 1 N. E. Rep. 251 ; Matter of 
 
 35 X. Y. 361. Valentine, 5 Misc. (N. Y.) 479, 26 N. 
 
 'See Locke v. Mabbett, 2 Keyes (N. Y. Sup]). 716. 
 
 Y.)457, ••; AM.. A pp. I ).--•. (N. Y.) 68. " Williams v. Thorn. 70 X. Y. 270; 
 
 Continental Trust Co. v. Wet- Wetmore v. Wetmore, 149 N. Y. 520 ; 
 
 more, M Hun (N. V. 1 9, 21 N. Y. Howard \. Leonard, 3 App. Div. (X. 
 
 Supp. 746. Y.)277. 
 
 •See Graff v. Bonnett, 31 N. Y. 9 ; »15 Abb. Pr. X. S. (N. Y.) 79.
 
 § 46 RULE AS TO EXEMPT PROPERTY. Sj 
 
 actual accumulations in the hands of the trustees could 
 be reached, must be regarded as overruled by Williams 
 v. Thorn. 1 The burden of proving that the income 
 exceeds the requirement of the debtor rests upon the 
 creditor. 2 A creditor, it may be noted, may also get the 
 benefit of an annuity given by a will in lieu of dower. 3 
 A wife may also reach her former husband's surplus 
 income and apply it to the payment of the alimony due 
 her. In some respects she stands in the position of an 
 ordinary creditor, in others her rights are superior to those 
 of an ordinary creditor, as it is the duty of the husband to 
 maintain her according to the directions of the decree not- 
 withstanding- the divorce. 4 
 
 § 46. Rule as to exempt property.— It being a test of a 
 fraudulent transfer that the property alienated must be of 
 some value out of which the creditor could have realized 
 the whole or a portion of his claim, 5 it would seem to 
 follow logically that exempt property is not susceptible 
 
 1 70 N. Y. 279. Wetmore v. Wet- Greene, 125 N. Y. 506, 26 N. E. Rep. 
 
 more, 149 N. Y. 529. See, also, infra, 739. 
 
 Chap. XXIII on Spendthrift Trusts; -Bunnell v. Gardner, 4 App. Div. 
 
 and compare Nichols v. Eaton, 91 U. (N. Y.) 321 ; Kilroy v. Wood, 42 Hun 
 
 S. 716 ; Broadway Nat. Bank v. (N. Y.) 636. Where a wife is the 
 
 Adams, 133 Mass. 170; Billings v. beneficiary and debtor her creditors 
 
 Marsh, 153 Mass. 311, 26 N. E. Rep. may reach such surplus income as is 
 
 1000 ; Wemyss v. White, 159 Mass. not needed for the support of the 
 
 484, 34 N. E. Rep. 718; Spindle v. wife and children. Howard v. 
 
 Shreve, 9 Biss. 199 ; Hyde v. Woods, Leonard, 3 App. Div. (N. Y.) 277. 
 
 94 U. S. 523, 526. Wetmore v. Trus 3 Degraw v. Clason, 11 Paige (N. Y.) 
 
 low, 51 N. Y. 338, was not a suit to 136. 
 
 reach surplus, but the whole income, 4 Examine Romaine v. Chauncey, 
 
 on the ground that the beneficiary 129 N. Y r . 566 ; Wetmore v. Wetmore, 
 
 was also a trustee. As to the effect 149 N. Y. 520; Andrews v. Whit my, 
 
 of appointing the beneficiary trustee 82 Hun (N. Y.) 117 ; Miller v. Miller, 
 
 see Losey v. Stanley, 147 N. Y. 560, 7 Hun (N. Y.), 208 ; Thompson v. 
 
 42 N. E. Rep. 8; Rose v. Hatch, 125 N. Thompson, 52 Him (N. Y.) 456, 5 N. 
 
 Y. 427, 26 N. E. Rep. 467 : Greene v. Y. Supp. 604. 
 
 5 See 8 23.
 
 RULE AS TO EXEMPT PROPERTY. 
 
 4 6 
 
 of fraudulent alienation. 1 As the creditor possesses no 
 right to have that class of property applied in satisfaction 
 of his claim while the debtor owns it, and would be power- 
 less to seize or appropriate it for that purpose were it 
 restored to the debtor's possession, the legitimate 
 deduction would seem to be that the creditor's process 
 could not be fastened upon it in the hands of the debtor's 
 alleged fraudulent vendee." As to alienations of exempt 
 property there may be a bad motive but no illegal act. 3 
 When a fraudulent transfer has been avoided, it leaves the 
 creditor to enforce his remedy against the property in the 
 same manner as if the fraudulent transfer had never been 
 executed. The creditor cannot ask to be placed in a 
 better position in respect to the property than he would 
 have occupied if no fraudulent bill of sale had ever 
 been made. 4 On the point whether the fact that 
 
 1 In Denny v. Bennett, 128 U. S. 
 495, 9 S. C. Rep. 134, the court say: 
 "No reason has been suggested why 
 the legislature could not exempt all 
 interests in landed estate from exe- 
 cution and sale under judgments 
 against the owner, and perhaps all 
 his personal property." 
 
 8 See Wood v. Chambers, 20 Texas, 
 247 ; Foster v. McGregor, 11 Vt. 595 ; 
 Whiting v. Barrett, 7 Lans. (N. Y.) 
 106 ; Bean v. Smith, 2 Mason, 252 ; 
 Winchester v. Gaddy, 72 N. C. 115 ; 
 Legro v. Lord, 10 Me. 161 ; Smith v. 
 Allen, 39 Miss. 469; Youmans v. Boom- 
 bower, 3 T. & C. (N. Y.) 21 ; Pike v. 
 Miles, 23 Wis. 164 ; Dreutzer v. Bell, 
 11 Wis. 114 : Smillie v. Quinn. 90 N. 
 Y. 493 ; Robb v. Brewer. 15 Rep. 
 048 ; Premo v. Hewitt, 55 Vt. 363 ; 
 Blair v. Smith, 114 Ind. 114. 15 N. E. 
 Rep. 817; Bloedorn v. Jewell, 34 Neb. 
 650, 52 N. W. Rep. 367; Shawano 
 County Bank v. Koeppen, 7s Wise 5:;:!, 
 17 N. \V. Rep. 723; Beyer v. Thoeming, 
 81 la. 517, 46 N. W. Rep. 1074 ; Payne 
 
 v.Wilson, 76 la. 377, 41 N. W. Rep. 45 ; 
 Dull v. Merrill, 69 Mich. 49, 36 N. W. 
 Rep. 677 ; Horton v. Kelly, 40 Minn . 
 193, 41 N. W. Rep. 1031 ; Munson v. 
 Carter, 40 Neb. 417, 58 N. W. Rep. 
 931 ; Rozek v. Redzinski, 87 Wise. 
 525, 58 N. W. Rep. 262 : Nance v. 
 Nance, 84 Ala. 375, 4 So. Rep. 699 ; 
 Kvello v. Taylor, 5 N. Dak. 78. 
 
 3 O'Connor v. Ward, 60 Miss. 1037. 
 "To property so exempted the credi- 
 tor 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, under the constitu- 
 tional provision against impairing the 
 obligations of contracts by State laws, 
 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 
 exemption were valid." Nichols v. 
 Eaton, 91 U. S. 726. 
 
 'Sheldon v. Weeks, 7 N. Y. Leg. 
 Obs. 60.
 
 § 46 RULE AS TO EXEMPT PROPERTY. 89 
 
 land has been purchased with money which itself 
 was exempt, such as pension money, prevents the 
 claims of creditors from attaching to it, the decisions 
 are conflicting. Kentucky denies the exemption, 1 while 
 New York favors it. 2 And it seems from the current 
 of adjudications that a conveyance of lands set aside for 
 fraud at the suit of creditors does not estop the grantor 
 from claiming a homestead in the premises thus con- 
 veyed. Such a conveyance does not constitute an 
 abandonment of the homestead so as to open it to cred- 
 itors. 3 A person may change his homestead, and where 
 in order to reduce the encumbrance on his new home- 
 stead he gives such encumbrancer a mortgage on his old 
 one, this transaction cannot be attacked by his creditors. 4 
 A general assignment is not invalidated by a clause which 
 reserves all exempt property; 5 nothing is withheld 
 which the creditors are entitled to have included in the 
 trust ; and in New York a receiver of a judgment-debtor 
 gets no title to exemptions. 6 The exemption is said, how- 
 ever, to endure only during the lifetime of the party, and 
 
 1 Johnson v. Elkins, 90 Ky. 163, 13 tors is not predicable of the convey- 
 S. W. Rep. 448 ; Hudspeth v. Hani- ance of property thus exempt ; and 
 son, 6 Ky. Law Rep. 304. so the title to it is not impeachable 
 
 2 Yates Co. Nat. Bank v. Carpenter, by creditors of the debtor making 
 119 N. Y. 550, 23 N. E. Rep. 1108. such conveyance." Proutv. Vaughn, 
 
 3 Turner v. Vaughan, 33 Ark. 460 ; 52 Vt. 459. 
 
 Thompson on Homesteads, J: 408, etc., 4 Palmer v. Hawes, 80 Wise. 474, 
 
 and cases cited. " It is evident," says 50 N. W. Rep. 341 ; Bogan v. Cleve- 
 
 Mr. Freeman, " that creditors cannot land, 52 Ark. 101, 12 S. W. Rep. 159. 
 
 be defrauded, hindered, or delayed by 5 Richardson v. Marqueze, 59 Miss, 
 
 the transfer of property which, neither 80, 42 Am. Rep. 353; Hildebrand 
 
 at law nor in equity, can be made to v. Bowman, 100 Pa. St. 580. See 
 
 contribute to the satisfaction of their Smith v. Mitchell, 12 Mich. 180 ; 
 
 debts. Hence it is almost universally Mulford v. Shirk, 26 Pa. St. 473; 
 
 conceded that property which is, by Heckman v. Messinger, 49 Pa. St. 
 
 statute, exempt from execution, can- 465. Contra, Sugg v. Tillman, 2 Swan 
 
 not be reached by creditors on the (Tenn.) 208. 
 
 ground that it has been fraudulently 6 Finnin v. Malloy, 33 N. Y. Super, 
 
 transferred." Freeman on Execu- Ct. 383 ; Cooney v. Cooney, 65 Barb, 
 
 tions, § 138. " Fraud against credi- (N. Y.) 524.
 
 9 o 
 
 PURCHASES OF EXEMPT PROPERTY. 
 
 47 
 
 consequently a gift of exempt personalty, intended to 
 take effect upon the death of the donor, and made with 
 the object of defrauding" creditors, cannot be sustained. 1 
 The property must have been exempt at the time 
 the conveyance was made ; if the right of exemption 
 has arisen since the alleged fraudulent conveyance, 
 the better rule is that it cannot be relied upon as a 
 defense. ~ 
 
 § 47. Fraudulent purchases of exempt property. — In con- 
 formity with the general rule that exempt property is not 
 usually susceptible of fraudulent alienation as regards 
 creditors, 3 the courts have decided that there is no intel- 
 ligible ground upon which it can be held to be fraudulent 
 for a person whose property does not, in the aggregate, 
 
 1 Martin v. Crosby, 11 Lea (Term.) 
 198. In Tillotson v. Wolcotfc, 48 N. 
 Y. 190, it appeared that the debtor 
 had recovered a judgment against a 
 creditor for an unlawful levy upon 
 and sale of the debtor's exempt prop- 
 erty. A creditor sought to get the 
 benefit of this judgment on the ground 
 that the character of the property had 
 been changed. The court said: "It 
 would be useless to grant the privi- 
 lege contained in the statute if it 
 could be rendered of no effect by re- 
 fusing an adequate remedy for the 
 invasion of the exemption ; or by per- 
 mitting a recovery, when obtained 
 for such invasion, t<> be wrested from 
 the debtor by proceedings on behalf 
 of his creditors. The judgment, 
 when recovered by the debtor for 
 the wrongful invasion of his privilege 
 of the exemption of his property 
 from Levy and sale, represents the 
 property for the value of which it 
 was recovered. Ee may make an- 
 other investment of the money to be 
 recovered in the same description of 
 
 property, in the possession of which, 
 as a householder, or person providing 
 for the support of his family, the 
 
 statute will again protect him 
 
 The proceeds of the judgment should 
 be held to be protected under the 
 statute, as exempt property, until 
 sufficient time lias elapsed to afford 
 the debtor a reasonable opportunity 
 to again purchase the description of 
 property necessary to enable him to 
 support his family, and in the pos- 
 session of which the law will protect 
 him as against the claims of credi- 
 tors." See Andrews v. Rowan, 28 
 How. Pr. (N. Y.) 120. 
 
 ' Phenix Ins. Co. v. Fielder, 133 
 Ind. 557, 33 N. E. Rep. 270; Kingen 
 v. Stroh, 130 Ind. 010, 36 N. E. Rep. 
 519. 
 
 8 Boggs v. Thompson. 13 Neb. 403; 
 Derby v. Weyrich, 8 Neb. 174; Crum- 
 inen v. Be 1, 08 N. C. 494. See 
 
 16; Nelson v. Frey, 4 Tex. App. Civ. 
 (as. 248; Yates County Nat. Bank 
 v. Carpenter, 119 N. Y. 550, 23 N. E. 
 Rep. 1108.
 
 § 47 PURCHASES OF EXEMPT PROPERTY. 91 
 
 exceed the value of all the exemptions, but a portion of 
 which property is in a form not exempt, to convert or 
 exchange it into the particular kinds of property which 
 are exempt. Thus in O'Donnell v. Segar, 1 the court 
 argued: "The only fraud claimed to have existed in 
 reference to the oxen, was that he might fraudulently 
 have acquired them from the proceeds or exchange of 
 other property which was not exempt, and this with the 
 intent to defeat the claims of creditors. This, in my 
 opinion, if true, does not constitute legal fraud, so long 
 as he was, in fact, engaged in one of the occupations 
 
 mentioned in which the use of the cattle was 
 
 needed." In Randall v. Buffington, 2 the court decided 
 that a general creditor of an insolvent debtor could not 
 subject a homestead to liability for his debts notwith- 
 standing the insolvent had applied property in his hands 
 to the payment of a debt which was a lien on the home- 
 stead. 3 " It must be remembered," said Chief-Justice 
 Breese, "that it is not a fraud on creditors to buy a home- 
 stead which would be beyond their reach." 4 This would 
 seem to afford a debtor an opportunity to practice a 
 species of petty fraud upon his creditors, but, as exemp- 
 tions of property from execution are usually very limited 
 in amount, 5 and the policy of the law is to prevent the 
 creditor from absolutely stripping the debtor of every 
 vestige of property, and of all the necessary conveniences 
 of living, or means of gaining a subsistence, the result 
 is not to be deprecated. Manifestly the creditor should 
 not be favored to the extent of absolutely crippling and 
 pauperizing the debtor, 6 or rendering him a public charge. 
 
 '25 Mich. 377. 5 See Nichols v. Eaton, 91 U. S. 726. 
 
 MOCal. 493. B See Hixon v. George, 18 Kansas 
 
 » k See In re Henkel, 2 Sawyer, 308. 253. "The debtor, by securing a 
 
 "Cipperly v. Rhodes, 53 111. 350. homestead for himself and family, 
 
 See, also, Finn v. Krut, (Tex. Ct. Civ. whether by an arrangement with 
 
 App. 1896) 34 S. W. Rep. 1013. creditors who might levy on it, or bj
 
 9 2 
 
 COVINOUS ALIENATIONS OF EXEMPTIONS. 
 
 §48 
 
 But where the statute exempts from the claims of cred- 
 itors a homestead, especially when such exemption is 
 irrespective of its value, it would lead to the grossest 
 fraud if a debtor, on the eve of insolvency, were allowed 
 to invest his money in exempt property of this kind. 1 
 
 §48. Covinous alienations of exemptions. — A convey- 
 ance of homestead by an embarrassed debtor and his wife 
 to a third party, and by the third party to the wife, cannot 
 be set aside as fraudulent and void as to creditors, for the 
 homestead is out of their reach, 2 and in general a volun- 
 tary conveyance of property exempt from execution vests 
 a good title in the donee, as against the creditors of the 
 donor. 8 The creditor, as we have said, cannot be injured 
 or defrauded by the transfer of property which is, by 
 positive law, expressly exempt from seizure to satisfy 
 their debts. 4 The dissolution of an insolvent firm and 
 
 the purchase of a house, or by moving 
 into a house which lie already owns, 
 takes nothing from his creditors 
 which the law has secured to them, 
 or in which they have any vested 
 right. He conceals no property. He 
 merely puts his property into a shape 
 in which it will be the subject of a 
 beneficial provision for himself which 
 the law recognizes and allows." 
 Hoar, J., in Tucker v. Drake, 11 Allen, 
 (Mass.) 146. 
 
 /// re Boothroyd, 3 Fed. Cases, 892, 
 14 N. B. R. 223 ; Peninsular Stove Co. 
 v. Roark, (la.) 63 N. W. Rep. 726. 
 But see Jacob}' v. Parkland Distilling 
 Co., 41 Minn. 227, 43 N. W. Rep. 52. 
 
 - Morrison \. Abbott, 27 Minn. 1 10. 
 See Ferguson v. Knmler, 27 Minn. 
 L56 ; Baldwin v. Rogers, 28 Minn. 
 .144; McFarland v. Goodman, 6 Biss. 
 Ill; Vogler v. Montgomery, 54 Mo. 
 578; Cox v. Wilder, 2 Dillon, 46; 
 White v. (iivi'iis, 29 La. Ann. 571; 
 Midler v. Inderreiden, 79 111. 382; 
 
 Hugunin v. Dewey, 20 Iowa, 368 ; 
 Buckley v. Wheeler, 52 Mich. 1 ; 
 Schribar v. Piatt, 19 Neb. 631 ; Moore 
 v. Flynn, 135 111. 74, 25 N. E. Rep. 844 ; 
 Hodges v. Winston, 95 Ala. 514, 11 So. 
 Rep. 200. 
 
 3 Furman v. Tenny, 28 Minn. 77 ; 
 Duvall v. Rollins, 68 N. C. 220 ; Mose- 
 ley v. Anderson, 40 Miss. 49 ; Anthony 
 v. Wade, 1 Bush (Ky.) 110 ; Patten v. 
 Smith, 4 Conn. 450 ; Tracy v. Cover, 
 28 Ohio St. 61. See § 46. 
 
 4 Morrison v. Abbott, 27 Minn. 116 ; 
 Carhart v. Harshaw, 45 Wis. 340, 
 30 Am. Rep. 752, and notes ; Delash- 
 mut v. Trau, 44 Iowa, 613 ; Smith v. 
 Rumsey, :::: Mich. 183 ; Derby v. Wey- 
 rich, 8 Neb. 174; Megehe v. Draper, 
 21 Mo. 510 ; Washburn v. Goodheart, 
 88 111. 229; Hixon v. George, 18 Kans. 
 •-'■">:; ; O'Conner v. Ward. 60 Miss. 1036 ; 
 Thomson v. Crane, 73 Fed. Rep. 327; 
 Simsv. Phillips, 54 Ark. 198, MS.W. 
 Rep. 461.
 
 § 49 CONFLICTING CASES. 93 
 
 division of the assets among the partners with a view of 
 securing the members the benefit of individual exemp- 
 tions, if accomplished without actual fraud, is valid. 1 
 Unsevered partnership property is, of course, not 
 exempt. 2 
 
 § 49. Conflicting cases. — The cases are not, however, 
 uniform in this regard, and are in some instances disin- 
 clined to allow a debtor to turn what was intended as a 
 shield of poverty into an instrument of fraud; 3 and 
 there are decisions of at least local authority which deny 
 the benefit of the exemption laws to a dishonest debtor 
 who shuffles and conceals his property, 4 or executes a home- 
 stead deed in furtherance of a design to hinder, delay, 
 and defraud creditors in the recovery of their just debts. 5 
 And it has been held that the privileges of the homestead 
 act may be forfeited by fraud, 6 and the right to claim 
 exemption also forfeited and lost. 7 This does not, it 
 seems to us, vary the general principle already stated, for 
 in these latter cases the property is not considered to be 
 under the cover or protection of the exemption statutes, 
 
 1 Bates v. Callender, 3 Dak. 256, 16 barrasses the officers of the law in the 
 N. W. Rep. 506. execution of their legal duties, he for- 
 
 2 Bates v. Callender, 3 Dak. 260, 16 feits his right to exemption.'' 
 
 N. W. Rep. 506 ; Bonsall v. Comly, 44 s See Rose v. Sharpless, 33 Gratt. 
 
 Pa. St. 442 ; Russell v. Lennon, 39 (Va.) 156. See generally Smith v. 
 
 Wis. 570; Hawley v. Hampton, 160 Emerson, 43 Pa. St. 456; Gilleland v. 
 
 Pa. St. 18, 28 Atl. Rep. 471 ; Gaylord Rhoads, 34 Pa. St. 187 ; Diffenderferv. 
 
 v. Imhoff, 26 Ohio St. 317 ; Pond v. Fisher, 3 Grant's Cases (Pa.) 30 : Piper 
 
 Kimball, 101 Mass. 105. v. Johnston, 12 Minn. 67; Chambers 
 
 3 Brackett v. Watkins, 21 Wendell v. Sallie, 29 Ark. 407 ; Huey's Appeal, 
 (N. Y.) 68. 29 Pa. St. 219 ; Currier v. Sutherland, 
 
 4 Strouse v. Becker, 38 Pa. St. 192 ; 54 N. H. 475, 20 Am. Rep. 143, and 
 Imhoff 's Appeal, 119 Pa. St. 355. In note. 
 
 Kreider's Estate, 135 Pa. St. 584, the 6 Pratt v. Burr, 5 Biss. 36. 
 court says: " The authorities cited by 'Cook v. Scott, 6 III. 335; Cassell 
 the court fully sustain the position v. W 7 illiams, 12 111. 387 ; Freeman v. 
 that if the debtor equivocates and Smith, 30 Pa. St. 264; Larkin v. Mr- 
 dissembles, denies the ownership of Annally, 5 Phil. (Pa.) 17 ; Carl v. 
 that which he cannot hide, and em- Smith, 8 Phil. (Pa.) 569.
 
 94 ABANDONED EXEMPTIONS. §§ 50, 50a 
 
 and by the rule of construction just stated, is liable to 
 the claims of creditors much the same as though it had 
 never been even colorably embraced within the exemp- 
 tions. 
 
 § 50. Abandoned exemptions. — It is asserted in Crosby v. 
 Baker, 1 that if the debtor changes his purpose to use the 
 exempt articles in his business, and determines to and 
 does in fact sell them to a third person, such bargain 
 being made to defraud creditors, and this purpose being 
 participated in by the vendee, the conveyance gives no 
 title to the purchaser, and the property may be reclaimed 
 and held by the assignee of the insolvent debtor in an 
 action against the purchaser. 2 The change of intention, 
 it is argued, takes away one of the requisites for the 
 exemption of the property. The same principle applies 
 to abandoned homesteads. 3 
 
 § 50a. What cannot be reached.— While the property or 
 accumulations of a debtor may be reached by his 
 creditors, this is not trueof his talents or industry. 1 Said 
 Hunt, C. : 5 "The application of the debtor's property is 
 rigidly directed to the payment of his debts. He cannot 
 transport it to another country, transfer it to his friend, 
 or conceal it from his creditor. Any or all of these 
 things he may do with his industry. He is at liberty to 
 transfer his person to a foreign land. He may bury his 
 talent in the earth, or he may give it to his wife or 
 
 '6 Allen (Mass.), 295. Abbey v. Deyo, M X V. 347; 
 
 See Stevenson v. White, 5 Allen Eilers v. Conradt, 39 Minn. 243 ; Knox 
 
 (Mass.) 148. v. Fow, 91 Ga. 367, IT S. E. Rep. 654; 
 
 »Cox v. Shropshire, 25 Texas, 113. city Bank v. Smisson, 73 Ga. 422. 
 See Edwards v. Eteid, 39 Neb. 645, 58 See Voorhees v. Bonesteel, 16 
 
 X. \V. Rep. 202; Belden v. Younger, Wall. 31 ; Tresch v. Wirtz, ;;i X. .1. 
 
 76 Iowa, 567, 41 N. W. Rep. 317. Eq. L29 ; Aldridge v. Muirhead, 101 
 
 'Compare Boggese \ Richards, 39 U. S. 399 ; Wilson v. McMillan, <'-j 
 
 \V. Va. 575; Penn v. Whitehead, 1*3 Ga. m 1 Osborne v. Wilkes. 108 X. C. 
 
 Gratt. (Va.)527;Trapnellv. Conklyn, 654, 13 S. E. Rep. 285. 
 :;? \V. Va. 242, 16 S. E. Rep. 570.
 
 § 50b PAYMENTS MADE TO A DEBTOR. 95 
 
 friend. No law, ancient or modern, of which I am aware, 
 has ever held to the contrary." l In Mayers v. Kaiser,- 
 the court say : " We are unable to understand how the 
 husband's creditors can be said to be defrauded, when 
 they cannot compel him to labor for their benefit, if he 
 voluntarily bestows on others, or on his wife, that which 
 under the law they cannot reach for the satisfaction of 
 their demands." Justice Bleckley says : "While a debtor 
 cannot give away his property to the prejudice of his 
 creditors, he may give away his labor." :? And a debtor who 
 receives the title of property for the specific purpose of 
 conveying it to another, acquires no such interest in it as 
 would make the execution of the trust a fraud upon his 
 creditors. 4 A husband's curtesy initiate in his wife's 
 lands cannot be sold to pay his debts. 5 
 
 g 50b. Payments made to a debtor. — In the case of 
 Simpson v. Dall, 6 it was declared that where a debt was 
 about to be attached by a creditor of the person to whom 
 it was due, and the person owing the debt made pay- 
 ment and settled the matter in full, the creditor of such 
 creditor could not compel payment by such debtor over 
 again to him, though it might be inferred that a settle- 
 ment was had or hastened with his creditor, the effect of 
 which was to prevent an attachment being levied on the 
 debt in his hands issued against his creditor. 
 
 1 Compare Lynn v. Smith. 35 Hun ; Wilson v. McMillan, 62 Ga. 16, 19. 
 
 (N. Y.) 275 ; Ross v. Hardin. 79 N. Y. 4 First Nat. Bk. v. Dwelley, 72 Me. 
 
 90, 91 ; Gage v. Dauchy, 34 N. Y. 223. 
 
 293 ; Gillett v. Bate, 86 N. Y. 94. See 5 Welsh v. Solenherger, 85 Va. 441 . 
 
 §303. Buckley v. Dunn, 67 Miss. 710, 8 S. E. Rep. 91; Breeding v. Davis, 
 
 7 So. Rep. 550 ; Osborne v. Wilkes. 108 77 Va. 639 ; Alexander v. Alexander, 
 
 N. C. 651, 13 S. E. Rep. 285 ; Mayers v. 85 Va. 353, 7 S. E. Rep. 335. 
 
 Kaiser, 85 Wis. 382, 55 N. W. Rep. 688. 6 3 Wall. 460. 
 
 8 85 Wis. 282, 396, 55 N. W. Rep. 688.
 
 CHAPTER III. 
 
 CREDITORS' REMEDIES. 
 
 §51. Concurrent remedies — Legal 
 and equitable. 
 52. No injunction against debtor 
 
 before judgment. 
 53- Certain exceptional cases. 
 
 54. Joinder of claims. 
 
 55. Uniting causes of action. 
 
 56. Exclusive jurisdiction in equity. 
 
 57. Land purchased in name of third 
 
 party. 
 
 58. Relief before and after sale. 
 
 59. The remedy at law. 
 
 60. By suit in equity. 
 
 61. Supplementary proceedings. 
 
 62. Assumpsit — Case — Conspiracy. 
 62a. Reference not ordered. 
 
 £ 63. Relief collateral to main action. 
 
 64. Remedy governed by lex fori. 
 
 65. Cumulative remedies — Allowed 
 
 and disallowed. 
 
 66. Effect of imprisonment of 
 
 debtor. 
 
 67. Election of remedies. 
 
 68. Creditors' bills. 
 
 69. Direct and collateral attack — 
 
 Exceptional doctrine in Louis- 
 iana. 
 
 70. Forms of relief in cases of fraud 
 
 on wife. 
 
 71. Procedure in Federal tribunals. 
 
 72. Recapitulation. 
 
 § 51. Concurrent remedies — Legal and equitable. — 
 Equity has concurrent jurisdiction with law over frauds 
 under the statute 13 Eliz. c. 5, or similar enactments, 1 and 
 the same general rules of construction govern in both 
 courts. 2 Thus it was remarked by the Supreme Court of 
 New Jersey : " Courts of law and courts of equity have 
 
 1 Orendorf v. Budlong, 12 Fed Rep. 
 24; Potter v. Adams, 125 Mo. 118, 
 126, 28 S. W. Rep. 490. citing the 
 text : Cox. v. Gruver, 40 N. J. Eq. 474, 
 3 Atl. Rep. 172; Moore v. William- 
 Mi,. 44 N. J. Eq. 496. 15 Atl. Rep. 
 587; Smith v. Wood, 42 N. J. Eq. 
 563, 7 Atl. Rep. 881. In Potter v. 
 Adams, 125 Mo. 125, the court say : 
 "If that deed was made to hinder, 
 delay or defraud the creditors of 
 Thomas Baine, then it was and is void 
 at law as well as in equity, and such 
 
 an issue ma}' be tried in an action of 
 ejectment as well as in a suit in equ it y 
 to set aside the fraudulent convey- 
 ance." 
 
 '-' Sexton v. Wheaton, 1 Am. Lea. 
 Cas. (5th ed.) 58, 59, note; Hopkirk 
 v. Randolph, 2 Brock. 133. The con- 
 tractual relation of debtor and cred- 
 itor remains unchanged in equity, 
 and the creditor is entitled to prove 
 his full claim without regard to col- 
 laterals. People v. Remington, 121 N. 
 Y. 328, 24 N. E. Rep. 793. See § 4.
 
 § 51 CONCURRENT REMEDIES. 97 
 
 concurrent jurisdiction over frauds, under the statute con- 
 cerning fraudulent conveyances. In cases where the legal 
 title to the property is such that it cannot be seized under 
 execution, resort to equity is necessary — as where the 
 legal title has never been in the debtor, having been con- 
 veyed by a third person directly to another, in secret trust 
 for the benefit of the debtor, with a design fraudulently 
 to screen it from his creditors. 1 But where the lecal title 
 has been in the debtor, so as to be subject to execution 
 at law, and might be made available for the satisfaction 
 of the debt, if the fraudulent conveyance had not been 
 interposed, the creditor, or a third person having taken 
 title under a sheriff's sale, may bring ejectment, and avoid 
 the fraudulent conveyance by proof of the illegal purpose 
 for which it was made." 2 It will be seen presently that 
 this latter illustration is not of universal application. 3 
 The forms of relief available to creditors are outlined in 
 our opening chapter, 4 where it is shown that creditors 
 may invoke the aid of equity in two cases, after proceed- 
 ing to judgment and execution at law, without obtaining 
 satisfaction of the debt. 5 In the first class of cases the 
 complainant proceeds simply upon the ground of fraud, 
 and in support or furtherance of the remedy at law, while 
 in the other class of cases relief is sought upon the theorv 
 that the remedy at law has been exhausted, and that it is 
 inequitable and unjust on the part of the debtor to refuse 
 to apply any intangible property or choses in action 
 toward the payment of the judgment. Resort by cred- 
 
 1 See §57. Ch. (Mich.) 28; Cornell v. Radway, 
 
 2 Mulfordv. Peterson, 35 N.J. Law, 22 Wis. 264; Beck v. Burdett, 1 
 
 133. See Cox v. Graver, 40 N. J. Eq. Paige (N. Y.) 305 , Jones v. Green, 1 
 
 474, 3 Atl. Rep. 172. Wall. 331. 
 
 3 See^ 69. 6 Williams v. Hubbard, Walker's 
 
 4 See § 4. Ch. (Mich.) 29. 
 
 5 Williams v. Hubbard, Walker's
 
 98 CONCURRENT REMEDIES. § 5 I 
 
 itors to courts of equity is of very frequent occurrence 
 because the common-law is not sufficiently flexible. 1 Of 
 necessity, in a common-law action, a purchase is treated 
 as either valid or void. 2 There is no middle ground. 3 
 Proof of absolute fraud, which is usually difficult, is, for 
 that reason, generally required at law, while in equity it 
 is said that an unfair or inequitable transaction — one 
 not of necessity absolutely fraudulent in the full sense of 
 that term — may be unraveled in the interest of cred- 
 itors. 4 In such cases the rights of an innocent vendee 
 can be preserved and protected by the plastic hand of 
 equity. In other words, certain cases seem to imply that 
 proof of fraud need not be so complete in equity as at 
 law ; 5 but it is not so easy to illustrate the distinction or 
 to state clearly a substantial justification for its existence. 6 
 Mr. Abbott observes in an editorial in the New York 
 Daily Register .• 7 " In the quaint language of Westmin- 
 ster Hall, ' legal fraud ' means illegal fraud, that is to say, 
 fraud for which an action at law lay to recover damages. 
 So 'equitable fraud' means inequitable conduct, not illegal 
 in the sense of sustaining an action for damages, but yet 
 
 1 In Mississippi Mills v. Colin, 150 in equity a more extensive significa- 
 U. S. 207, 14 S. C. Rep. 75, the court tion than at law, and, as charged 
 say : " A court of equity will aid a here, involved the consideration of 
 judgment-creditor to reach the prop- the principles applicable to fiduciary 
 erty of his debtor by removing fraud- and trust relations between the parties 
 ulent judgments, or conveyances or throughout the period of their con- 
 transfers which defeat his legal rem- nection, we concur with the Supreme 
 edy at law." Citing 2 Beach on Mod- Court of the District in sustaining the 
 ern Eq. Jur. £ 883. jurisdiction." 
 
 8 See Chap. XIII. Warner v. Daniels, 1 Woodb. & 
 
 -See §193. Foster v. Foster, 56 Vt. M. 103: Fullagar v. Clark, 18 Ves. 
 
 540. 483; Earl of Chesterfield v. Janssen, 
 
 'Sec Eilbourn v. Sunderland, 130 2 Ves. Sen. 143 ; Kilbourn v. Sunder- 
 
 U. S. 515, 9 S. C. Rep. 594, where the land, 130 IT. S. 515, 9 S. C. Rep. 594. 
 
 court say : " As the remedy at law See ~ (in. 
 
 in the case in hand was rendered em- 6 See Marksbury v. Taylor, 10 Bush, 
 
 barrassed and doubtful by the con- (Ky.)519. 
 
 duct of the defendants, and fraud has ' Nov. 15, 1888.
 
 § 51 CONCURRENT REMEDIES. 99 
 
 so like it in effect that the Chancellor would give a 
 remedy." * 
 
 Though in some States legal and equitable jurisdictions 
 have been united in the same tribunals, yet the distinc- 
 tions which formerly appertained in the forms of action, 
 of pleading, and of relief, are by no means superseded 
 or obliterated. In territory where the system of common 
 law and chancery both prevail, and the only adequate 
 relief is in equity, and the pleadings are framed in accord- 
 ance with this view, the suit must be tried as a chancery 
 case by the modes of procedure known to courts of 
 equity. The judge or chancellor is responsible for the 
 decision, and, though he may, by means of feigned issues, 
 refer any questions of fact to a jury, 3 still his own con- 
 science must be satisfied that the finding is correct, and 
 the decree must be rendered as the result of his indi- 
 vidual judgment, aided, it may be true, by the finding of 
 the jury. Hence, where the trial in such a case is con- 
 ducted as though it were a controversy in a common-law 
 action, and a judgment is rendered upon a verdict as at com- 
 mon law, it will be reversed for error. 3 In an equitable 
 proceeding of this character, as will presently be shown, 
 a decree in the nature of a judgment for damages cannot 
 
 1 In United States v. Union Pacific that the remedy at law was not as 
 
 Railway, 160 U. S. 51, the court re- effectual as in equity, said, among 
 
 mark: "In Boyce v. Grundy, 3 other things, that a ' direct proceed- 
 
 Peters 210, 215, this court said : ' It ing in equity will save time, expense, 
 
 is not enough that there is a remedy and a multiplicity of suits, and settle 
 
 at law ; it must be plain and adequate, finally the rights of all concerned in 
 
 or, in other words, as practical and one litigation.' " 
 
 efficient to the ends of justice and its - See Wright v. Nostrand, 94 X. Y. 
 
 prompt administration as the remedy 31 ; Coleman v. Dixon, 50 N. Y. 572. 
 
 in equity.' The circumstances of 3 Dunphy v. Kleinsmith, 11 Wall. 
 
 each case must determine the applica- 615. In an equity suit to set aside a 
 
 tion of the rule. Watson v. Suther- fraudulent transfer the defendant is 
 
 land, 5 Wall. 74, 79. In Oelrichs v. not entitled to a jury trial, but the 
 
 Spain, 15 Wall. 211, 228, an objection court may in its discretion frame 
 
 was raised that the remedy at law issues to be tried before a jury. 
 
 was ample. The court, observing Wright v. Nostrand, 94 N. Y. 31.
 
 IOO NO INJUNCTION BEFORE JUDGMENT. § 52 
 
 be rendered against the defendant who is alleged to have 
 fraudulently taken an assignment of the insolvent's prop- 
 erty. The decree must be for an accounting as to the 
 property which has come into the hands of the fraudulent 
 vendee. 1 Where property which is legally liable to be 
 taken in execution has been fraudulently conveyed or en- 
 cumbered, the jurisdiction is usually concurrent, as the 
 creditor may either issue an execution at law and sell the 
 property, or file a bill in equity to have the conveyance 
 set aside. 2 The remedy in equity, as will presently 
 appear, 3 is necessarily exclusive in cases where the sub- 
 ject-matter of contention is not subject to execution. 
 
 § 52. No injunction against debtor before judgment. — As a 
 general rule, a simple contract creditor who has no lien on 
 the property, cannot enjoin his debtor from selling it, nor 
 will he be allowed to come into equity to invoke its inter- 
 ference to preserve the property until a judgment can be 
 obtained. 4 If the property of an honest struggling 
 debtor could be tied up by injunction upon mere unad- 
 justed legal demands, he might be constantly exposed 
 to the greatest hardships and grossest frauds, for which 
 
 ■See §§ 176-179. Cates v. Allen, 149 U. S. 451, 13 S. ( '. 
 
 *Seenoteto Sexton v. Wheaton, 1 Rep. 883, 977; Dortic v. Dugas, 52 
 
 Am. Lea. Cas. (5th ed.) 58, 59; Bisp- Ga. 231 ; Buchanan v. Marsh, IT 
 
 ham's Equity, £242; Blenkinsopp v. Iowa, 494; Rich v. Levy, 16 Md. 74: 
 
 Blenkinsopp, 1 De. G., M. & G. 500 ; Phelps v. Foster, 18 111. 309 ; Brooksv. 
 
 Partee v. Mathews, 53 Miss. 146; Stone, 19How. Pr. (N. Y.) 395 ; Uhl v. 
 
 Sheafe v. Sheafe, 40 N. H. 516 ; Scott Dillon. 10 Md. 4()0 ; Hubbard v. Hub- 
 
 v. Indianapolis Wagon Works, 48 Ind. hard. 14 Md. 356; National Trades- 
 
 75; Gallman v. Perrie, 47 Miss. 131, men's B'k v. Wetmore, 124 N.Y. 241. 
 
 140; Barto's Appeal, 55 Pa. St. 886 ; Compare Case v. Beauregard, 99 U. S. 
 
 Tupper v. Thompson, 2G Minn. 386; 125; Locke v. Lewis, 124 Mass. 1. See 
 
 Henry v. Einman, 25 Minn. 199. £73. Nor can a creditor having pos- 
 
 8 See .' 56. session of the debtor's property, with- 
 
 4 Peyton v. Lamar. 42 Ga. 134 
 (uhbedge v. Adams 42 Ga 124 
 Oberholser v. Greenfield, 47 Ga. 530 
 
 Shufeldt v. Boehm, 96 111. 560 ; Moran the debt. Xenia Bank v. Stewart, 
 
 v. Dawes, 1 Hopk. Ch. (N. Y.) 365; 114 U.S. 224, 5 S. C. Rep. 845. 
 
 out judicial process and against the 
 debtor's will, sell the property and 
 
 apply its proceeds to the payment of
 
 §52 NO INJUNCTION BEFORE JUDGMENT. IOI 
 
 the law would afford no adequate remedy. It would 
 deprive him of the means of payment, or of defending 
 himself against vexatious litigation, and force him into 
 unconscionable compromises to prevent the ruin of his 
 business pending the controversy. 1 An injunction ought 
 not to issue to compel parties to hold goods pending a 
 trial at law, with the expectation that they may be wanted 
 to answer an execution upon a judgment which the cred- 
 itor hopes to obtain. 2 " The authorities are clear," says 
 the learned and lamented Mr. Justice Campbell, 3 " that 
 chancery will not interfere to prevent an insolvent from 
 alienating his property to avoid an existing or prospective 
 debt, even when there is a suit pending to establish it." 
 " The reason of the rule," says Chancellor Kent, " seems 
 to be that until the creditor has established his title he 
 has no right to interfere, and it would lead to an unneces- 
 sary and, perhaps, a fruitless and oppressive interruption 
 of the exercise of the debtor's rights. Unless he has a 
 certain claim upon the property of the debtor, he has no 
 concern with his frauds" 4 So the simple contract cred- 
 
 1 Shufeldt v. Boelim, 96 111. 560. lecting debts clue to him, with the 
 
 2 Phelps v. Foster, 18 111. 309; Hea- intention to defraud creditors and 
 cock v. Durand, 42 111. 230 ; Horner abscond. An injunction was allowed 
 v. Zimmerman, 45 111. 14. and a receiver appointed. Theappel- 
 
 3 Adler v. Fenton, 24 How. 411; late court in reversing the decree and 
 see Findlay v. McAllister, 113 U. S. dismissing the bill, said (p. 503): 
 114, 5 S. C. Rep. 401. " The bill filed by the appellees in 
 
 4 Wiggins v. Armstrong, 2 Johns. this cause, states no sufficient case 
 Ch. (N. Y.) 145, and the able opinion entitling them to the relief prayed, 
 of Chancellor Kent. Gates v. Allen, No authority lias been shown to this 
 149 U. S. 458, 13 S. C. Rep. 883, 977 ; court, nor can any be produced enti- 
 Smith v. Railroad Co., 99 U. S. 398 ; tied to consideration, which sanctions 
 Artman v. Giles, 155 Pa. St. 415, 26 the exercise of the high and extra- 
 Atl. Rep. 668. Uhl v. Dillon, 10 Md. ordinary power of a court of clian- 
 500, was a bill for an injunction and eery, to interpose, by writ of injunc- 
 receiver filed by a simple contract tion, in a case like the one before us, 
 creditor, charging that the defendant restraining a debtor in the enjoymenl 
 was deeply in debt ; that he was dis- and power of disposition of his prop- 
 posing of his stock ; had already par- erty. The appellees (the complain 
 ted with his real estate ; and was col- ants below) are merely general cred-
 
 102 
 
 CERTAIN EXCEPTK »NAL CASES. 
 
 § 53 
 
 itors of a firm ordinarily have no specific lien upon the 
 firm property which will enable them to interfere with any 
 disposition which the firm ma)- make of it. 1 And a wife 
 having no judgment cannot restrain her husband's vendee 
 from taking possession of real estate upon the ground 
 that the transfer was in fraud of her right of support, and 
 deprived her of the right to attach the land in a suit for 
 divorce and alimony. 2 
 
 §53. Certain exceptional cases. —Occasional exceptions 
 may be found in some States to the rule that equity will 
 not interfere at the instance of a simple contract creditor. 
 But the exceptions prove the force of the rule. In Moore 
 v. Kidder, 3 the bill distinctly charged a fraudulent inten- 
 tion on the part of a debtor summoned as trustee, and 
 an attempt to dispose of his property, and put it beyond 
 the reach of creditors, for the purpose of defeating the 
 plaintiffs in the collection of any judgment that might be 
 obtained in a suit at law, and asked for an injunction to 
 
 itors of the appellant, who have nut 
 prosecuted their claim to judgment 
 and execution, nor in any other man- 
 hit acquired a lien upon the debtor's 
 property, ami were not entitled to the 
 writ of injunction nor to the appoint- 
 ment of a receiver. Whatever may 
 be the supposed defects of the exist- 
 ing laws of the State, in leaving to 
 the debtor the absolute power of dis- 
 posing of his property, and leaving 
 the creditor to the slow and veryin- 
 adequate Legal remedies now pro- 
 vided, if such defects exist, it is solely 
 in tin power of the legislature to cor- 
 rect them. It is not within the prov- 
 ince of the chancery courts to stretch 
 their power beyond the Limits of the 
 .-iiit uorities of the law, for the purpose 
 of remedying such defects. Such a 
 course would in- productive of greal 
 mischief, ami make the rights of tlie 
 
 citizen depend upon the vague and 
 uncertain discretion of the judges, 
 instead of the safe and well-defined 
 rules of law." 
 
 1 Wilcox v. Kellogg, 11 Ohio. 394 ; 
 Gwin v. Selby, 5 Ohio St. 97; Sigler 
 v. Knox County Bank, 8 Ohio St. 511 ; 
 Potts v. Blackwell, 4 Jones" Eq. (N. 
 I 58; Field v. Chapman, 15 Abb. Pr. 
 (N. Y,) 434 ; State v. Thomas, 7 Mo 
 App. 205; Shackelford v. Shackel 
 lord. 32 Gratt. (Va ) 481; Allen v. 
 Center Valley Co., 21 Conn. 130; 
 Schmidlapp v. Currie, 55 Miss. 507 : 
 Reeves v. Ayers, 38 111. 418 ; Mayer v. 
 Clark, 40 Ala. 259 ; see Case v. Beau- 
 regard, 99 (J. S. 125. 
 
 2 Ullrich v. Ullrich, G8 Conn. 580. 
 
 3 55 N. II. 491. See People ex rel. 
 Cmil'man v. Van Buren, 136 N. Y. 
 261, 32 N. E. Rep. 775.
 
 §53 CERTAIN EXCEPTIONAL CASES. 103 
 
 prevent that mischief and wrong. The court said that 
 the bill very clearly showed a case for equitable interfer- 
 ence, in aid of the remedy at law, and that without such 
 relief the suit at law would be rendered fruitless by the 
 active fraud of the defendant. 1 Clearly this would be a 
 proper case for the issuance of an attachment or other 
 suitable provisional relief in the action at law. In an- 
 other case where a bill charged insolvency in the debtor, 
 and averred that he had fraudulently transferred his goods 
 to a third person, who was implicated in the fraud, and 
 that the debtor had purchased the goods with intent to 
 defraud the plaintiffs, a receivership was allowed before 
 judgment. 2 Here the relief was extended upon the the- 
 ory that the goods for which the indebtedness was cre- 
 ated were fraudulently obtained, and that the debtor 
 never acquired title to them. This would seem to be 
 substantially substituting a bill in equity for the relief 
 usually incident to replevin. An equitable action in the 
 nature of a creditor's bill for an injunction, may be 
 brought in aid of a lien by attachment before the recov- 
 ery of judgment in the attachment action where there is 
 danger that the property may be removed from the juris- 
 diction of the court. 3 The court in People ex rel. Cauff- 
 man v. Van Buren 4 claim that there is no conflict be- 
 tween Thurber v. Blanck 5 and Mechanics' and Traders' 
 Bank v. Dakin. 6 But as will presently appear, 7 People 
 ex rel. Cauffman v. Van Buren 8 has been in a measure 
 
 1 Compare Bowen v. Hoskins, 45 775. Compare Burtis v. Dickinson, 
 Miss. 183; Cottrell v. Moody, 12 B. 81 Hun (N. Y.) 345, 30 N. Y. Supp. 
 Mon. (Ky.) 502; Thompson v. Diffen- 886. 
 
 derfer, 1 Md. Ch. 489. 4 136 N. Y. 252, 259, 32 N. E. Rep. 
 
 2 Cohen v. Meyers, 42 Ga. 46. Com- 775. 
 
 pare Hyde v. Ellery, 18 Md. 500 ; Ro- 6 50 N, Y T . 80. 
 
 senberg v. Moore, 11 Md. 376 ; Hag- 6 51 N. Y. 519. 
 
 garty v. Pittman, 1 Paige (N. Y.) 298. ' See § 81. 
 
 3 People ex rel. Cauffman v. Van 8 136 N. Y. 252, 32 N. E. Rep. 775. 
 Buren, 136 N. Y. 252, 32 N. E. Rep.
 
 104 JOINDER OF CLAIMS. § 54 
 
 limited by the more recent case of Whitney v Davis. 1 
 Where goods are sold on credit, but such credit has been 
 obtained by false representations and concealment of 
 insolvency, such as would entitle the vendor to rescind, 
 he is not considered as being an ordinary creditor, but he 
 may disaffirm and obtain an injunction against the dis- 
 posal of the goods."-' Creditors will, as a rule, find these 
 exceptional cases not easy to support. 
 
 ^ 54. Joinder of claims. — The assets of the fraudulent 
 debtor are, as a rule, scattered among different friends, in 
 different forms, and by transactions had at different 
 times. This requires some notice of the authorities as to 
 uniting or joining claims. In cases where the sole object 
 of the bill is to secure satisfaction of a judgment out of 
 property fraudulently alienated, the suit may be framed 
 to avoid several distinct conveyances made to as many 
 grantees. Such a bill is said to embody a single cause 
 of action. 3 This principle applies although the defend- 
 ants may have separate and distinct defenses. 4 In Lattin 
 v. McCarty, 5 it was decided that an equitable cause of 
 action to cancel and remove, as a cloud upon plaintiff's 
 title, a deed given by mistake by a third party to the 
 defendant, under which the latter had fraudulently 
 obtained possession, could be united with a claim to 
 recover possession of the premises, and asserted in the 
 same complaint. The principle of this case was expressly 
 
 ' 148 X. V. 261, 42 N. E. Rep. 661. v. Tucker. 29 Mo. 850 ; Snodgrass v. 
 
 1 Fecbheimer v. Baum, 87 Fed. Rep. Andrews, ::o Miss. 472: Reed v. 
 
 167; cf. England v. Adams, 157 Mass. Stryker, 4Abb. App. Dec. (N. Y.)26; 
 
 449, 32 N. E. Rep. 665; Donaldson v. Dimmock v. Bixby, 20 Pick. (Mass.) 
 
 Farwell, 93 U. S. 633 ; Stewart v. 368. 
 
 Emerson, 52 N. B. 301. 4 Donovan v. Dunning. 69 Mo. 436. 
 
 'Trego v. Skinner, 42 M«!. 432; Ml N. Y. 107; Stock Growers' 
 
 Nortb v.Broadway, 9 Minn. 183; Chase Bank v. New! 13 Col. 247, 22 Pac. 
 
 \. Searles, 16 N. II. 51 1 ; Jacot v. Rep. 444. 
 Boyle, is How. Pr.(N. Y.) 106; Tucker
 
 §55 UNITING CAUSES OF ACTION. 105 
 
 repudiated in Missouri in an action involving substan- 
 tially the same state of facts, on the theory that a bill in 
 equity was not a proper form of action for the recovery 
 of the possession of real estate, there being an adequate 
 remedy at law. 1 But this latter reason does not com- 
 mend itself as necessarily conclusive. Fraudulent con- 
 fessions of judgments entered in different courts may be 
 attacked in one suit. 3 So a partner may sue his copart- 
 ners for an accounting, and may join in the same action 
 alienees of his copartners, to whom the latter have collu- 
 sively transferred partnership assets in fraud of the part- 
 nership, and seek a cancellation of the transfer as well as 
 an accounting. " Why," it has been said, " should not all 
 this be embraced in one action ? The object is single, 
 viz. : To bring about a complete and final settlement of 
 the partnership." 3 
 
 § 55. Uniting causes of action. — Questions relating to 
 the joinder of causes of action of necessity frequently 
 arise for adjudication in contests of the class under 
 consideration, where debtors have sought to conceal 
 property by different subterfuges. In Palen v. Bushnell, 4 
 the plaintiff, as receiver in supplementary proceedings, 
 instituted an action against the debtor and a third party, 
 ([). To recover moneys usuriously exacted by the third 
 party from the debtor ; (2). To compel the third party to 
 account for securities belonging to the debtor ; and 
 (3). To set aside as fraudulent certain transfers of real 
 and personal property alleged to have been made by the 
 debtor to the third party. The court observed : " What 
 
 1 Peyton v. Rose, 41 Mo. 257 ; Curd solvent railroad corporation maj in 
 v. Lackland, 43 Mo. 140. Ohio join in the same action a claim 
 
 2 Uhlfelder v. Levy, 9 Cal. 607. to compel payment of unpaid sul>- 
 
 3 Compare, upon this general sub- scriptions and a claim to enforce the 
 ject, Webb v. Helion, 3 Rob. (N. Y.) individual liability of stockholders. 
 625 ; Wade v. Rusher, 4 Bosw. (N. Y.) Warner v. Callender, 20 Ohio St. 190. 
 537. A judgment-creditor of an in- 4 46 Barb. (N. Y.) 25.
 
 106 EXCLUSIVE JURISDICTION IN EQUITY. § 56 
 
 is the subject of the action in this case ? It is the restitu- 
 tion of the property of the judgment-debtor whom the 
 plaintiff represents. To entitle himself to this relief, the 
 plaintiff avers in his complaint different transactions out 
 of which his right to restitution flows." i This statement 
 is criticised by Mr. Pomeroy, 2 as follows : " There is here 
 a plain confusion of ideas. The restitution of the debtor's 
 property, which is the relief demanded, is the object of the 
 action. If there is anything connected with this matter 
 clear, it is that the authors of the code used the terms 
 'subject of action' and 'object of the action' to describe 
 different and distinct facts." The criticism upon the 
 particular language employed in this case has some foun- 
 dation, but we cannot suppress the conviction that a sys- 
 tem of procedure which prohibited the joinder of claims, 
 such as those specified in a single action, would furnish 
 most unsatisfactory and inadequate redress to creditors. 
 
 ^56. Exclusive jurisdiction in equity.— The subjects of 
 fraud and trusts are peculiarly matters of equity jurisdic- 
 tion. 3 Manifestly in cases where property is of such 
 nature that it never was subject to execution at law, the 
 remedy of creditors desiring to reach it, as we have 
 observed, is exclusively in chancery. 4 Thus, as has 
 already been shown, 5 it was observed by Chief- ustice 
 Gray, in delivering the opinion of the Supreme Court of 
 Massachusetts, in Drake v. Rice, that, "by the law of 
 
 1 A cause of action against one for :; National Tradesmen's B'k v. Wet- 
 
 fraudulently pnnuring a conveyance more, 124 X. Y. 241. 
 
 of property from a decedent in his 4 SeeWeed v. Pierce, 9 Cow (N. Y.) 
 
 life-time cannot be joined with a cause 722: Sexton v. Wheaton, I Am. Lea. 
 
 of action against another for fraudu- Cas. (5th ed.) 59 ; Drake v. Rice, 130 
 
 \< nth procuring the making of a will Mass. 412 ; Abbott v. Tenney, 18 N. 
 
 cutting oil the plaintiff. Heath v. H. 109 ; Sargent v. Salmond, 27 Me. 
 
 Heath, 18 Misc. (N. Y.) 521. 539. 
 
 Remedies and Remedial Rights, B See§ L7. 
 
 § 470. 1 180 .Mass. 112. See Bragg v. Gay- 
 
 nor, 85 Wis. 4G8, 55 N. VV. Rep. 919.
 
 57 
 
 PURCHASES IX NAME OF THIRD PARTY. 
 
 107 
 
 England before the American Revolution, . 
 fraudulent conveyances of choses in action, though not 
 specified in the statute, were equally void, but from the 
 nature of the subject, the remedy of the creditor must 
 be sought in equity." 1 
 
 §57. Land purchased in name of third party. — The 
 creditor may encounter a practical difficulty in reaching 
 realty paid for by the debtor, the title to which is fraudu- 
 lently taken in the name of a third party. This is a very 
 common device. The courts are somewhat at variance 
 upon the question as to whether or not real estate so held 
 can be sold on execution against the debtor, and recovered 
 by the purchaser in ejectment, or, in fact, whether it can 
 be reached by any proceedings at law. Authorities can 
 be cited to the effect that an execution sale of land, the 
 title to which is held in this manner, passes nothing to 
 the purchaser ; 2 the creditor's proper remedy to reach it 
 
 'Citing Taylor v. Jones (1743), 2 
 Atk. 600 ; King v. Dupine (1744), 2 
 Atk. 603, note ; Horn v. Horn (1749), 
 Ainbl. 79; Ryall v. Rolle (1749), 1 
 Atk. 165, 1 Ves. Sr. 348 ; Partridge v. 
 Gopp (1758), 1 Eden, 163, Ambl. 596 ; 
 Bayard v. Hoffman, 4 Johns. Ch. (N. 
 Y.) 450 ; Hadden v. Spader, 20 Johns. 
 (N. Y.) 554 ; Abbott v. Tenney, 18 N. 
 H. 109 ; Sargent v. Salmond, 27 Me. 
 539. See §§ 17, 33. 
 
 2 Mulford v. Peterson, 35 N. J. Law, 
 133 ; Haggerty v. Nixon, 26 N. J. Eq. 
 42 ; Garfield v. Hatrnaker, 15 N. Y. 
 475; Dewey v. Long, 25 Vt. 564; 
 Davis v. McKinney, 5 Ala. 719 ; Web- 
 ster v. Folsom, 58 Me. 230 ; Low v. 
 Marco, 53 Me. 45 ; Jimmerson v. Dun- 
 can, 3 Jones (N. C.) Law, 537 ; Carlisle 
 v. Tindall, 49 Miss. 229; Howe v. 
 Bishop, 3 Met. (Mass.) 26. See Hamil- 
 ton, v. Cone, 99 Mass. 478. In Niver 
 v. Crane, 98 N. Y. 40, it was decided 
 that the fact that the debtor paid the 
 
 consideration for property conveyed 
 to another did not alone authorize 
 a judgment taking the property to 
 satisfy the debt. Under the provision 
 of the statute of uses and trusts (1 R. 
 S. 728, £§ 51, 52), which declares that 
 a grant made to one person, the con- 
 sideration for which is paid by 
 another, shall be presumed fraudu- 
 lent as against the creditors at that 
 time of the person paying the con- 
 sideration, and where fraudulent in- 
 tent is not disproved, a trust shall re- 
 sult in favor of such creditors, to 
 make out such a trust the considera- 
 tion must be paid at or before the 
 execution of the conveyance. See 
 Decker v. Decker, 108 N. Y. 128. 
 Such trust is exclusively in favor of 
 creditors; the heirs al law cannot en- 
 force it. Robertson v. Sayre, i.34 V 
 Y. 97, 31 N. E. Rep. 050 ; Miner v. 
 Lane, 87 Wis. 348. 57 N. W. Rep. 1105.
 
 108 RELIEF BEFORE AND AFTER SALE. §58 
 
 is declared to be by bill in equity ; ' the grantee is 
 considered to hold the title impressed with a trust in 
 favor of creditors, ~ and may be compelled to quit-claim 
 his interest. 3 The principle embodied in these authori- 
 ties seems to commend itself as logical, but it is not uni- 
 versally recognized. There are cases holding that an 
 execution purchaser on a judgment against the debtor 
 may recover the lands in ejectment, even though the 
 title was never in the debtor, if it is shown that the 
 fraudulent grantee held it for the debtor's benefit, 4 and 
 that such an interest may be attached. 5 It may be 
 observed that a purchase of personal property by a 
 debtor in the name of a third party does not exempt it 
 from direct seizure by creditors. 6 
 
 § 58. Relief before and after sale. — The jurisdiction of a 
 court of equity is ample either before or after sale under 
 a judgment, to set aside a deed made in fraud of cred- 
 itors — before sale to enable the creditor to present and 
 sell an unembarrassed title ; after sale to remove clouds 
 from the title." It will thus be seen how important the 
 jurisdiction of equity becomes in connection with fraudu- 
 
 1 Mul ford v. Peterson, 35 N. J. sucli a case? See Ocean Nat. Bank v. 
 
 Law, L33. Olcott, 46 N. Y. 22. See infra. Chap. 
 
 ^Garfield v. Hatmaker, 15 N. Y. IV. 
 475; Corey v. Greene, 51 Me. 114; 'Kimmel v. McRight, 2 Pa. St. 38 '< 
 Simmons v. Ingram, 60 Miss. 900. Tevis v. Doe, 3 Ind. 129; Pennington 
 Such fcrusl exists in favor of all the v. Clifton, II Ind. 1U2 ; Guthrie v. 
 creditors of the person who pay e the Gardner, L9Wend.(N. Y.) 414; Brew- 
 consideration; one creditor cannol ster v. Power, 10 Paige (N. Y.) 569; 
 acquire a preference by taking pro- Garfield v. Hatmaker, 15 X. Y. 477. 
 ceedinga in equity. Minn- v. Lane, Cecil Bank v. Snively, 23 Md. 253. 
 87 Wis. 348, 57 X. W. Rep. L105 ; cf. "Godding v. Brackett, 34 Me. 27. 
 Brown v. Chubb, L35 X. Y. 174, 31 X. See§ 82. 
 E. Rep. 1030. < oilman v. IVrrie. II Miss. 131. 
 
 3 Cutter v. Griswold, Walker's Ch. See Orendorf v. Budlong, 1. Fed. 
 
 (Mich.) 137; Lnsorge v. Barth, 88 Wis. Rep. 25 ; Partee v. Mathews, 53 Miss. 
 
 558, 60 X. W. Rep. L055. Musi the 1 10. 
 creditor lirsl recover judgment in
 
 §59 TI1E REMEDY AT LAW. 109 
 
 lent transfers. It would often be impossible, especially 
 in cases affecting realty, to render the title marketable 
 until the flexible hand of a court of equity had removed 
 the simulated transfers and incumbrances in which the 
 debtor has involved it. Equity alone can disentangle the 
 title from the doubts and embarrassments which interfere 
 with a realization of a fair price ; and to that extent and 
 for that purpose its invaluable assistance is usually asked. 1 
 In Rhead v. Hounson, 2 the court said: "The bill must 
 be construed in reference to its nature. It is not filed to 
 reach property incapable of seizure on execution, and 
 therefore based on the theory that the legal remedy has 
 been exhausted. Very far from it. The principle on 
 which it proceeds is that a legal remedy is in fact pro- 
 gressing, and which, being fraudulently obstructed, the 
 aid of the court is needed to remove that obstruction. 
 The claim made is that the deed from the judgment- 
 debtor to his son is fraudulent as against the creditor, 
 and that the farm is therefore subject to levy and the 
 deed exposed to be removed out of the way of it by tin- 
 assistant jurisdiction of equity." 
 
 § 59. The remedy at law. — A judgment-creditor may 
 proceed at law to sell under execution lands or property 
 which his debtor has fraudulently alienated: 5 which are 
 subject to execution. The attempted transfer may be 
 treated as a nullity, and the property subjected to seizure 
 and sale upon execution the same as though no such 
 
 ■Partee v. Mathews. 5:] Miss. 146; 90; Fowler v. Trebein, Hi Ohio St. 
 
 Calm v. Person, 56 Miss. 363. 493; Staples v. Bradley, 33 Conn. L67; 
 
 2 46 Mich. 246. Foley v. Bitter, 34 Md. 646; Gor 
 
 3 Carter v. Castleherry, 5 Ala. 277; merlyv. Chapman, 51 (la. 421 ; Rus 
 
 Booth v. Bunce, 33 N. Y. 139 ; Henry sell v. Dyer. 33 N. H. 186 ; Smith v. 
 
 v. Hinman, 25 Minn. 199; Brown v. Reid, 134 NY. 576, 577, 31 N E. 
 
 Snell, 46 Me. 490; Thomason v. Rep. 1082: Maders v. Whallon, 71 
 
 Neeley, 50 Miss. 313 ; Jacoby's Appeal, Hun (N. Y.) 378, 26 X. Y. Supp. 
 
 67 Pa. St. 434 ; Allen v. Berry, 50 Mo. 614. But see g 69.
 
 110 THE REMEDY AT LAW. §59 
 
 covinous transfer had ever been made. 1 The creditor in 
 such cases may consider the debtor as still the owner of 
 the property, and may pursue it to secure satisfaction of 
 the claim the same as though the title were unembarrassed 
 by the fraudulent deed or transfer. 3 The general prin- 
 ciple was involved in Rinchey v. Stryker, 3 in which case 
 it was decided that where an attachment was issued to a 
 sheriff he was entitled to seize under it any property 
 which the debtor might have disposed of with intent to 
 defraud his creditors ; that by such seizure a specific lien 
 was acquired upon the property attached, and the sheriff, 
 when sued for wrongfully taking the property, had a right 
 to show, even before judgment in the attachment suit, 
 that the title of the purchaser from the debtor was 
 fraudulent and voidable as against the attaching creditor. 1 
 Incidentally it may be recalled that where the plaintiff has 
 the legal title to land, and it is held out of possession by 
 the defendant, he must proceed at law. Bills quia timet 
 cannot ordinarily be brought by one out of possession, 5 
 
 1 Tupper v. Thompson, 26 Minn. 24 How. 227; Baldwin v. Peet, 22 
 
 386 ; Henry v. Hinman, 25 Minn. 199; Tex. 708, note. In Massachusetts, 
 
 National Park Bank v. Lanahan, 60 jurisdiction in equity is limited to 
 
 Md. 513 ; Smith v. Reid, 134 N. Y. property or rights which cannot be 
 
 568 ; 31 N. E. Rep. 1082 ; Maders v. attached or taken on execution. 
 
 W ha lion, 74 Hun, 372, 26 N. Y. Supp. Schleisinger v. Sherman, 127 Mass. 
 
 614; Wagner v. Law, 3 Wash. St. 209. 
 
 500, 28 Pac. Rep. 1109, 29 Id. 927; 3 26 How. Pr. (N. Y.) 75, 31 N. Y. 
 
 Bergen v. Carman,79 N. Y. 153. 1 40. 
 
 - Thomason v. Neeley, 50 Miss. 313. 4 See Greenleaf v. Munford, 30 
 
 It has been observed that where the How. Pr. (N. Y.) 30, 31. But com- 
 
 "deed is a mere pretence, collusively pare Thurber v. Blanck, 50 N Y. 83, 
 
 devised, and the parties do not intend with Mechanic's & Traders' Bank v. 
 
 other than an ostensible change of the Dakin, 51 N. Y, 519, reaffirmed in 
 
 property, fche property does not pass Peopleexrel. Oauffman v. Van Buren, 
 
 as to creditors; and even when the 136 N. Y. 252, 32 N. E. Rep. 775. See 
 
 parties intend an irrevocable dispo- Lawrence v. Bank of the Republic, 35 
 
 sition of the property, but the convey- N. Y. 320 ; infra, £ 81. 
 
 ance has been made with the intent ■' United States v. Wilson, 118 U. 
 
 to defraud creditors," it may be S. 89, 6 S. C. Rep. 991. 
 avoided. Chandler v. Von Roeder,
 
 6o 
 
 BY SUIT IN EQUITY. 
 
 II I 
 
 unless the absence of possession is excused by local 
 statute. 
 
 § 60. By suit in equity. — Fraud is one of the recognized 
 subjects of equity jurisdiction, and is the most ancient 
 foundation of its power. 1 The primary jurisdiction in 
 equity is in personam: The existence of a remedy at 
 law does not interfere with the riorht of a creditor to 
 resort to a court of equity 3 to secure a cancellation of a 
 fraudulent conveyance as an obstacle in the way of the 
 full enforcement of a judgment, and a cloud on the 
 title to the property sought to be reached. 4 The same 
 rule applies where it is sought to set aside fraudulent 
 chattel mortgages and judgments fraudulently confessed. 5 
 The suit in equity is sometimes said to be an ancillary 
 relief in aid of the legal remedy/' since a court of equity 
 does not intervene to enforce the payment of debts. 7 It 
 
 1 Hartshorn v. Eatnes, 31 Me. 97 ; 
 Story's Equity, § 68. See Warner v. 
 Blakeman, 4Keyes (N. Y.)507 ; Logan 
 v. Logan, 22 Fla. 564. 
 
 2 Wilson v. Martin- Wilson, etc. Co., 
 151 Mass. 517, 24 N. E. Rep. 784. 
 
 3 See §51. 
 
 4 Planters' & M. Bank v. Walker, 7 
 Ala. 926 ; Sheafe v. Sheafe, 40 N. H. 
 516 : Dargan v. Waring, 11 Ala. 988 ; 
 Cookv. Johnson, 12 N. J. Eq. 52 ; 
 Bean v. Smith, 2 Mason, 253; Harnlen 
 v. McGillieuddy, 62 Me. 269 ; Waddell 
 v. Lanier, 62 Ala. 347 ; Traip v. Gould, 
 15 Me. 83; Beaumont v. Herrick, 24 
 Ohio St. 456 ; Sockman v. Sockman, 
 18 Ohio, 368 ; Musselman v. Kent, 33 
 Ind. 452 ; Dockray v. Mason, 48 Me. 
 178. In Gormley v. Potter, 29 Ohio 
 St. 599, the court said : " The petition 
 was founded upon the fact that the 
 land had been taken in execution, 
 and had for its object the removal of 
 the cloud cast upon the title by the 
 fraudulent conveyance. The removal 
 
 of this cloud was in the interest 
 of both the debtor and the creditors 
 by enabling the property to be sold 
 at a better price." Again, it has 
 been observed that "The creditor 
 has not only a right to have the 
 property subjected to the pay- 
 ment of his judgment, but to have 
 it subjected in such manner thai it 
 will bring its fair market value." 
 Fowler v. McCartney, 27 Miss. 510. 
 
 5 Sweetser v. Silber, 87 Wis. 102, 
 58 N. W. Rep. 239; Gullickson v. 
 Madsen, 87 Wis. 19, 57 N. W. Rep. 
 965. 
 
 6 See McCartney v. Bostwick, 32 
 N. Y. 57, and compare Niver v. 
 Crane, 98 N. Y. 40, and Estes v. Wil- 
 cox, 67 N. Y. 264. 
 
 'Dunlevy v. Tallmadge, 32 N. Y. 
 459; Voorhees v. Howard, I Keyes 
 (N. Y.) 383; Griffin v. Nitcher, 57 
 Me. 272 ; Logan v. Logan, 22 Fla. 564. 
 See§ 73.
 
 112 BY SUIT IN EQUITY. § 60 
 
 may be asked why resort is so frequently had to a credi- 
 tor's bill seeking a decree to avoid or cancel the covinous 
 transfer when the property may be more expeditiously 
 seized under attachment or execution. The creditor's bill, 
 or a suit to clear the fraudulent transfer, is, for many rea- 
 sons, entitled to preference as a means of relief. Should 
 the creditor attempt to sell the disputed property arbi- 
 trarily under execution, bidders would be deterred from 
 purchasing lest they should buy a lawsuit, hence the mar- 
 ket value of the land embraced in the covinous transfer 
 is practically destroyed. Then the seizure of the prop- 
 erty subjects the creditor to the peril incident to proving 
 that the transfer was fraudulent, and in the event of fail- 
 ure to establish fraud, of paying damages for the unwar- 
 rantable interference, seizure, and sale. By filing a 
 creditor's bill practically the only risk incurred is the costs 
 and expense of the suit, for generally no seizure is effected 
 unless the suit is successful, in which event the covinous 
 transfer and cloud on the title is cleared away. Then, as 
 already stated, equity procedure is more flexible than the 
 procedure at law, 1 and in equity an inequitable transaction, 
 not absolutely fraudulent in the full sense of that term, 
 maybe avoided at the suit of a creditor. Fraud it is said 
 may be presumed in equity but must be proved at law ; 2 
 but this is a loose and unreliable statement, for it must 
 be proved in either forum. Courts of equity it is true 
 will act upon circumstance indicating fraud which courts 
 of law might scarcely deem satisfactory proofs ; and will 
 grant relief upon the ground of fraud established by pre- 
 sumptive evidence of such character as courts of law 
 would not always deem sufficient to justify a verdict. 3 
 
 'Sec §51. 3 See Jackson v. King, 4 Cow. (N. 
 
 King v. Moon, 42 Mo. 555. See Y.) 207, 3 Greenl. Ev. § 254, 1 
 
 Kilbourn v. Sunderland, 130 U. S. Story's Eq., Jur. §§ 190-193. "Fraud 
 
 515, 9 S. C. Rep. 594. is not to be considered as a Bimple
 
 6o 
 
 BY SUIT IN EQUITY. 
 
 113 
 
 In Kilbourn v. Sunderland, 1 the court says " Fraud has in 
 equity a more extensive signification than at law." The 
 Supreme Court of Pennsylvania, 2 in commenting upon 
 the applicability of equity to suits involving fraudulent 
 alienations, remark : " It is especially adapted to this 
 class of cases. Its process is plastic and may be readily 
 moulded to suit the exigencies of the particular case. 
 A court of equity proceeds with but little regard to 
 mere form. It moves with celerity, and seizes the 
 fruits of a fraud in the hands of the wrong-doer." Having 
 jurisdiction for one purpose equity will make a complete 
 disposition of the cause. 3 Equity endeavors to deal with 
 the substance of affairs ; to look beyond the observance 
 of mere forms ; 4 to regulate its judgment according to the 
 
 fact, but a conclusion to be drawn 
 from all the circumstances of the 
 case. It may be inferred from the 
 nature of the contract itself, or from 
 the condition or circumstances of the 
 parties. The general principle is well 
 settled, that equity will give relief 
 against presumptive frauds, and 
 therein will go further than courts of 
 law, where fraud must be proved and 
 not presumed .... There are many 
 instances of fraud that would in 
 equity affect instruments in writing 
 concerning lands, of which the law 
 could not take notice." Burt v. 
 Keyes, 1 Flipp. 63. Compare United 
 States v. Amistad, 15 Pet. 594 ; Lloyd 
 v. Fulton, 91 U. S. 483. See g 15. 
 
 1 130 U. S. 515, 9 S. C. Rep. 594. 
 Compare 1 Story, Eq. Jur. § 450. 
 
 4 Fowler's Appeal, 87 Pa. St. 454. 
 In Artman v. Giles, 155 Pa. St. 416, 26 
 Atl. Rep. 668, the right of simple con- 
 tract or attaching creditors to restrain 
 a judgment-creditor from enforcing 
 his judgment was denied. The court 
 says : " The only case at all analogous 
 to the present, in which a creditor not 
 having a judgment has been per- 
 
 mitted to interfere with the debtor's 
 disposition of his property, is Fow- 
 ler's Appeal, 87 Pa. St. 449. In that 
 case the bill averred that the debtor 
 had conveyed land to his son-in-law, 
 by collusion to defraud his creditors, 
 and that the grantee was about to 
 convey to bona fide purchasers. The 
 debtor having died, the bill was 
 sustained upon the ground that the 
 creditor complainant, though without 
 a judgment, had an express statutory 
 lien, which gave him a standing. To 
 sustain the present injunction would 
 be going a decided step farther than 
 any case adjudicated, and in opposi- 
 tion to established principles." 
 
 3 Manufacturing Co. v. Bradley, 105 
 U. S. 182 ; Oelrichs v. Spain, 15 Wall. 
 211 ; Crane v. Bunnell, 10 Paige (N. 
 Y.)333; Billups v. Sears, 5 Gratt. 
 (Va.) 31 ; Pearce v. Creswick, 2 Hare, 
 296 ; Martin v. Tidwell, 36 Ga. 345 ; 
 Sanborn v. Kittredge, 20 Vt. 632; 
 Souder's Appeal, 57 Pa. St. 498, 502; 
 Corby v. Bean, 44 Mo. 379. 
 
 "Wright v. Oroville M. Co., 40 Cal. 
 20. In Buck v. Voreis, 89 Ind. 117, 
 Elliott, J., said: " Forms are of little
 
 114 SUPPLEMENTARY PROCEEDINGS. § 6l 
 
 real purposes which controlled parties in the various mat- 
 ters brought before it for relief or correction; ^ to tear aside 
 the covering beneath which the perpetrators of the fraud 
 seek concealment ; to deal with actual facts, not with pre- 
 texts and disguises. The Supreme Court of Illinois say : 
 "Equity will penetrate beyond the covering of form, and 
 look at the substance of a transaction, and treat it as it 
 really and in essence is, however it may seem." 2 
 
 Rules of pleading in equity are not so strict in matters 
 of form as at law. 3 
 
 § 61. Supplementary proceedings. — Supplementary pro- 
 ceedings have, in New York and in some of the other 
 States which have appropriated its reformed system of 
 procedure, taken, in some measure, the place of creditors' 
 actions or suits in equity to reach equitable assets. This 
 remedy is now a special proceeding in New York, 4 and 
 not a proceeding in the original action. These proceed- 
 ings furnish, to a certain extent, a substitute 5 for a 
 
 moment, for where fraud appears system of equity jurisprudence that 
 courts will drive through all matters fraud vitiates every transaction ; and, 
 of form and expose and punish the however men may surround it with 
 corrupt act." Of course, equity " can- forms, solemn instruments, proceed- 
 not create a title where none exists." ings conforming to all the details re- 
 
 . . . . " Creditors can work out quired in the laws, or even by the 
 
 equities only through the rights of formal judgment of courts, a court of 
 
 the parties where there is no fraud." equity will disregard them all, if 
 
 Rush v. Vought. 55 Pa. St. 438,444, necessary, that justice and equity 
 
 quoted in Curry v. Lloyd, 22 Fed. may prevail." 
 
 Rep. 365. 4 N. Y. Code Civ. Pro. § 2433. Com- 
 
 1 Livermore v. McNair, 34 N. J. pare West Side Bank v. Pngsley, 47 
 
 Eq. 482 ; Buck v. Voreis, 89 Ind. 117. N. Y. 368. 
 
 •Wadhams v. Gay, 73 HI. 415, 435. B In Importers* and Tr. Nat. Bk. v. 
 
 See Gay v. Parparfc, 100 U. S. 699, 1 Quackenbush, 143 N. Y. 571, the court 
 
 S. ('. Rep. 456. says: '* Proceedings supplementary to 
 
 8 Birely's Ex'rs v. Staley, 5 Gill. & execution are remedies in equity for 
 
 J. (Md.)432; Ridgely v. Bond, 18 Md. the collection of the creditor's judg- 
 
 I50-. Small v. Owings, 1 Md. Ch. "(;7. ment, and were intruded asasubsti- 
 
 ln Warner v. Blakeman, 4 Keyes (N. tute for the creditor's bill, as formerly 
 
 Y.) 507, Woodruff, J., said : " It is the used in chancery." 
 just and proper pride of our matured
 
 6i 
 
 SUPPLEMENTARY PROCEEDINGS. 
 
 Ii; 
 
 creditor's bill, 1 for the discovery and sequestration of 
 property, 2 and by their commencement a lien is said to 
 be acquired upon the debtor's equitable assets, 8 though 
 another creditor may gain precedence if, after the service 
 of the order for the examination of the debtor, and 
 before the appointment of a receiver, he discovers prop- 
 erty liable to execution and levies upon it. 4 Generally 
 speaking these proceedings will reach whatever property 
 is available on a creditor's bill, 3 and have, as we have 
 seen, been held to be a simple substitute for it, 6 and are 
 entitled to all the presumptions of regularity which apper- 
 tain to proceedings in courts of general jurisdiction. 7 
 Supplementary proceedings are not exclusive. 8 The judg- 
 ment-creditor may abandon them and institute a suit in 
 his own name to annul a fraudulent alienation, 9 and he 
 may invoke both remedies at the same time. 10 If a third 
 
 1 Spencer v. Cuyler, 9 Abb. Pr. (N. 
 Y.) 382 ; People v. Mead, 29 How. Pr. 
 (N. Y.) 360 ; Pope v. Cole, 64 Barb. (N. 
 Y. 409 ; afiTd, 55 N. Y. 124 ; Importers' 
 & Tr. Nat. Bk. v. Quackenbiish, 143 
 N. Y. 571, 38 N. E. Rep. 728. Com- 
 pare Catlin v. Doughty, 12 How. Pr. 
 (N. Y.) 459. 
 
 2 Becker v. Torrance. 31 N. Y. 631 ; 
 Billings v. Stewart, 4 Dem. (N. Y.) 
 269. 
 
 3 Lynch v. Johnson, 48 N T . Y. 33; 
 Storm v. Waddell, 2 Sandf. Ch. (N. 
 Y.) 494 ; Brown v. Nichols, 42 N. Y. 
 26: Edmonston v McLoud, 16 N. Y. 
 544 ; Billings v. Stewart, 4 Dem. (N. 
 Y.) 268. Compare Dubois v. Cassidy, 
 75 N. Y. 300 ; Campbell v. Genet, 2 
 Hilt. (N. Y.) 290; Robinson v. Stewart, 
 10 N. Y. 196. Although the lien ac- 
 quired by the judgment-creditor in 
 these proceedings is not divested by 
 the death of the debtor, it cannot be 
 enforced in a Surrogate's Court un- 
 less prior to the death a receiver was 
 appointed or an order was made di- 
 
 recting the application of the debtor's 
 property to the satisfaction of the 
 judgment. Billings v. Stewart, 4 
 Dem. (N. Y.) 265. 
 
 4 Becker v. Torrance, 31 N. Y. 631. 
 See Davenport v. Kelly, 42 N. Y. 193. 
 
 5 Barnes v. Morgan, 3 Hun (N. Y.) 
 703: Barker v. Dayton, 28 Wis. 367. 
 
 6 Lynch v. Johnson, 48 N. Y. 33 ; 
 Smith v. AVeeks, 60 Wis. 100, 18 N. 
 W. Rep. 778: Importers' & Tr. Nat. 
 Bk. v. Quackenbiish, 143 N. Y. 571, 
 38 X. E. Rep. 728. Compare Williams 
 v. Thorn, 70 N. Y. 270. See .' 45. 
 
 1 Wright v. Nostrand, 94 N. Y. 31. 
 
 8 Williams v. Sexton, 19 Wis. 42. 
 
 9 Bennett v. McGuire, 58 Barb. (N. 
 Y.) 625; Anderson v. Pilgrim, II S. 
 ('. 423, 19 S. E. Rep. 1002, 20 Ed. 64. 
 
 10 Gates v. Young, 17 Weekly Dig. 
 (N. Y.) 551 ; Schloss v. Wallach, 16 
 Abb. N. C. (N. Y.) 319??, 38 Hun (N. 
 Y.) 638, 102 N. Y. 683; Matter of 
 Sickle, 52 Hun (N. Y.) 527, 5 N. Y. 
 Supp. 703. See §§51, 65.
 
 n6 
 
 SUPPLEMENTARY PROCEEDINGS. 
 
 6l 
 
 party makes claim to any property which the examination 
 discloses, the rights of the claimants cannot be determined 
 in this proceeding, but resort must be had to a suit. 1 The 
 procedure is usually by order, made upon proof of the 
 return of an execution unsatisfied, requiring the debtor to 
 appear in person in court, to be examined concerning his 
 property. 2 The judgment upon which the order is pro- 
 cured must be in personam? Property or equitable 
 assets being thus disclosed, a receiver is appointed, who, 
 upon qualifying, becomes vested with the debtor's assets 
 and equitable interests, without conveyance or assign- 
 ment, 4 though he does not get title to exempt property. 5 
 The receiver represents creditors, and thus may impeach 
 the debtor's fraudulent sales G in the right of creditors. It 
 seems to be no objection to the exercise of the juris- 
 diction appointing a receiver that the debtor has no 
 assets, 7 or that such property as he is possessed of is sub- 
 
 1 West Side Bank v. Pugsley, 47 N. 
 Y. 372 ; Bennett v. McGuire, 58 Barb. 
 (N. Y.) 634; Rodman v. Henry, 17 N. 
 Y. 484 ; Sebrauth v. Dry Dock Sav- 
 ings Bank, 20 Alb. L. J. 197. Sup- 
 plementary proceedings may be insti- 
 tuted before a judge of a Federal 
 court, on a judgment at law recovered 
 in the United States Courts. Ex parte 
 Boyd, 105 U. S. 647 ; Canal & C. Sts. 
 R. R. Co. v. Hart, 114 U. S. 654, 661. 
 Compare Senter v. Mitchell, 5 McCra, 
 147. But the examination cannot be 
 held in a State court upon a Federal 
 judgment. Tompkins v. Pureed, 12 
 Hun (N. Y.) 662. Compare Goodyear 
 Vulcanite Co. v. Frisselle, 22 Hun (N. 
 Y.) 175. 
 
 ■ Bartlett v. McNeil, 49 How. Pr. 
 (N. Y.) 55 ; affi'd 60 N. Y. 53. 
 
 ■•> Bartlett v. McNeil, 3 Hun (N. Y.) 
 221. Compare Schwinger v. Hickok, 
 53 N. Y. 280. 
 
 4 Porter v. Williams, 9 N. Y. 142; 
 Cooney v. Cooney, 65 Barb. (N. Y) 
 
 524 ; Bostwick v. Menck, 40 N. Y. 
 383. 
 
 5 Cooney v. Cooney, 65 Barb. (N. Y.) 
 
 525 ; Hudson v. Plets, 11 Paige (N. Y.) 
 180; Andrews v. Rowan, 28 How. Pr. 
 (N. Y.) 126. SeeTillotson v. Wolcott, 
 48 N. Y. 190 ; Hancock v. Sears, 93 N. 
 Y. 79. 
 
 6 Dollard v. Taylor, 33 N. Y. Super. 
 498; Bostwick v. Menck, 40 N. Y. 
 384 ; Porter v. Williams, 9 N. Y. 142. 
 
 1 See Browning v. Bettis, 8 Paige 
 (N. Y.) 508; Bloodgood v. Clark, 4 
 Paige (N. Y.) 574; Shainwald v. 
 Lewis, 6 Fed. Rep. 776. Monell J., 
 held, in Dollard v. Taylor, 33 N. Y. 
 Superior Ct. 496, that where the only 
 purpose of appointing a receiver in 
 supplementary proceedings was to at- 
 tack a fraudulent assignment, the 
 application was properly denied as 
 the judgment-creditor could himself 
 fde a bill for that purpose, and in a 
 proper case secure a receiver pending 
 the suit.
 
 §62 ASSUMPSIT — CASE — CONSPIRACY. I I 7 
 
 ject to execution. 1 As an illustration of the utility of this 
 remedy it may be stated that a widow's unassigned right 
 of dower can be reached by her creditors 2 in supplement- 
 ary proceedings, 3 for it is liable to their claims, 4 and a 
 receiver appointed in these proceedings may bring an 
 action for its admeasurement. 5 
 
 § 62. Assumpsit — Case — Conspiracy. — A fraudulent 
 assignment will not ordinarily authorize a judgment 
 against the purchaser for the original debt ; u nor is an 
 action on the case considered to be an appropriate form of 
 procedure against the debtor and his fraudulent alienee. 
 The latter form of action is discussed at much leneth in 
 Lamb v. Stone, 7 and the language of the court is quoted 
 with approval by the learned and lamented Mr. Justice 
 Campbell, in Adler v. Fenton, 8 as follows: "The plaintiff 
 complained of the fraud of the defendant in purchasing 
 the property of his absconding debtor, in order to aid 
 and abet him in the fraudulent purpose of evading the 
 
 ' Bailey v. Lane, 15 Abb. Pr. (N. Y.) 4 Tompkins v. Fonda, 4 Paige (N. 
 
 373, an note. Tbe order in supple- Y. ) 448 ; Mutual Life Ins. Co. v. Ship- 
 
 mentary proceedings usually forbids man, 119 N. Y. 324, 24 N. E. Rep. 
 
 the debtor from making a transfer of 177. 
 
 his property until further directions : 5 Payne v, Becker, 87 N. Y. 153. 
 but in New York his earnings within See Stewart v. McMartin, 5 Barb. (N. 
 sixty days of the commencement of Y.) 438. It may be noted in conclud- 
 the proceedings are exempt and it is ing this section that an attorney em- 
 not considered, a contempt of the ployed to collect a claim has author- 
 court's order for him to apply them ity to institute supplementary pro- 
 to the support of his family. Han- ceedings, but is not authorized under 
 cock v. Sears, 93 N. Y. 79 ; Newell v. the original retainer to direct the re- 
 Cutler, 19 Hun (N. Y.) 74, is over- ceiver to institute an action to annul 
 ruled. The salary of a municipal a fraudulent transfer. Ward v. Roy, 
 officer cannot be reached in these pro- 69 N. Y. 9(3. 
 
 ceedings. Waldman v. O'Donnell, 57 6 Aspinall v. Jones, 17 Mo. 212. 
 
 How. Pr. (N. Y.) 215. But examine See Chap. XL 
 
 Singer v. Wheeler, 6 111. App. 225. 7 11 Pick. (Mass.) 527. 
 
 2 Mutual Life Ins. Co. v. Shipman, s 24 How. 412; compare Find lay 
 119 N. Y. 330, 24 N. E. Rep. 177. v. McAllister, 113 U. S. 104, 5 S. C. 
 
 3 Strong v. Clem, 12 Ind. 37 ; Payne Rep. 401. 
 v. Becker, 87 N. Y. 153.
 
 I I S ASSUMPSIT — CASE — CONSPIRACY. §62 
 
 payment of his debt. The court ask, what damage has 
 the plaintiff sustained by the transfer of his debtor's 
 property? He has lost no lien, for he had none. No 
 attachment has been defeated, for none had been made. 
 He has not lost the custody of his debtor's body, for he 
 had not arrested him. He has not been prevented 
 from attaching the property, or arresting the body 
 of his debtor, for he had never procured any writ 
 of attachment against him. He has lost no claim upon, 
 or interest in the property, for he never acquired either. 
 The most that can be said is, that he intended to attach 
 the property, and the wrongful act of the defendant has 
 
 prevented him from executing his intention 
 
 On the whole, it does not appear that the tort of the 
 defendant caused any damage to the plaintiff. But even 
 if so, yet it is too remote, indefinite and contingent, to 
 be the ground of an action." Many cases might be cited 
 to the same general effect. 1 In an action on the case for 
 conspiracy which arose in Rhode Island, 2 the plaintiffs, 
 who were simple contract creditors, claimed that the 
 defendants and the debtor had combined together to pre- 
 vent plaintiffs and other creditors from obtaining payment 
 of their debts ; that the debtor, among other things, had 
 made fictitious mortgages t the defendants under cover 
 of which the latter had secreted the property and removed 
 it out of the debtor's possession, so that plaintiffs were 
 prevented from attaching it, and had thus lost their 
 claims. The court ruled that the action could not be 
 maintained. 3 "A simple conspiracy," says Nelson, J., 
 
 'Smith v. Blake, 1 Day (Conn.) (Mass.) 146; Bradley v. Fuller, 118 
 
 258; Moody v. Burton, 27 Me. 427; Mass. 239; Mowry v. Schroder, 4 
 
 ( Gardiner v. Sherrod, 2 Hawks (N. C.) Strob. (S. C.) Law 69. 
 
 1?:! : Kimball v. Barman, 34 Md. 407; ! Klous v. Hennessey, 13 R. I. 335. 
 
 Austin v. Barrows, 41 Conn. 287; 8 Chief- Justice Durfee said: "There 
 
 Green v. Kimble, 6 Blackf. (Ind.) is some conflict of authority on the 
 
 552; Wellington v. Small, 3 Cusb. question thus raised, but the more
 
 §62 
 
 ASSUMPSIT — CASE — CONSPIRACY. 
 
 [19 
 
 in Hutchins v. Hutchins, 1 " however atrocious, unless it 
 resulted in actual damage to the party, never was the 
 subject of a civil action, not even when the old form of a 
 writ of conspiracy, in its limited and most technical char- 
 acter, was in use." 2 Yet authority can be cited tending 
 to uphold a recovery in such cases. In Meredith v. 
 Johns, 3 it appeared that an action of tort had been 
 brought, and a verdict for ^500 rendered, against a third 
 party, for secretly and maliciously taking, carrying away, 
 and concealing the slaves and property of one Peter May 
 (against whom the plaintiff had a cause of action), and 
 also for aiding, assisting and counseling May to absent 
 himself, to the end that the creditor might be pre- 
 vented from recovering against him. The Supreme Court 
 of Appeals of Virginia declined to interfere in equity to 
 restrain the enforcement of the judgment, and took the 
 position that the defense was a legal one, and that the 
 party aggrieved must seek redress in a law court. It seems, 
 
 numerous, and, we think, the better 
 reasoned and stronger cases are 
 against the action. The principal 
 ground of decision in these cases is 
 that the damage, which is the gist of 
 the action, is too remote, uncertain 
 and contingent, inasmuch as the cred- 
 itor has not an assured right, but 
 simply a chance of securing his claim 
 by attachment or levy, which he may 
 or may not succeed in improving. It 
 is impossible to find any measure of 
 damages for the loss of such a 
 mere chance or possibility. Another 
 ground, added in some of the cases, 
 is that no action would lie in favor of 
 such a creditor against the debtor for 
 putting his property beyond the reach 
 of legal process, if the debtor were to 
 do it by himself alone, and that what 
 would not be actionable if done by 
 himself alone, cannot be actionable 
 any the more when done by him with 
 
 the assistance of others. The first of 
 these grounds, which is the funda- 
 mental one, and has been chiefly re- 
 lied on, has been so exhaustively 
 analyzed and discussed in the cases 
 that it is impossible for us to add any- 
 thing to the reasons adduced in sup- 
 port of it." Klous v. Hennessey, 13 
 R. I. 335. 
 
 1 7 Hill (N. Y.) 107. 
 
 2 In Brackett v. Griswold, 112 N. 
 Y. 467, 20 N. E. Rep. 376, the court 
 say : "A mere conspiracy to com- 
 mit a fraud is never of itself a cause 
 
 of action The principles 
 
 which govern an action for fraud and 
 deceit are the saint', whether tin- 
 fraud is alleged to have originated in 
 a conspiracy, or to have been solely 
 committed by a defendant without 
 aid or co-operation." 
 
 H H. &M. (Va.) 595.
 
 120 ASSUMPSIT — CASE — CONSPIRACY. §62 
 
 however, to have approved the procedure. 1 The case of 
 Ouinby v. Strauss, 2 of which the reports are meagre and 
 unsatisfactory, is another illustration. The action was 
 instituted by judgment-creditors of one of the defendants 
 against such defendant and his attorney, charging them 
 with having fraudulently conspired together to keep the 
 debtor's personal property out of the reach of his cred- 
 itors by the execution of chattel mortgages thereon to 
 secure fictitious debts, one of them to the attorney, under 
 which the property had been sold and bid off in the 
 attorney's interest. The property so sold exceeded in 
 value the amount of the creditor's judgment. The jury 
 found that there was a conspiracy and the judgment was 
 upheld, the appellate court saying that as the property 
 appropriated by the attorney to his own use exceeded in 
 value the amount of the creditor's claim, it was but just 
 that he should pay the creditor whose demand he had 
 sought to defeat. The point that nominal damages only 
 could be awarded was expressly overruled. The re- 
 covery in this case must, however, be rested upon the 
 ground that the attorney had a sufficient amount of the 
 debtor's property in his hands to satisfy the complaining 
 creditor's claim. In such a case the rule that only nomi- 
 nal damages are recoverable is not controlling. 3 
 
 1 Compare Mott v. Danforth, G and its purpose was to recover dam- 
 Watts (Pa.) 307 ; Penrod v. Morrison, ages which the plaintiffs claim to have 
 2 P. & W. (Pa.) 126. suffered by the alleged tortious and 
 
 - 90 N. Y. 664. But in Braem v. wrongful act of the defendant in tak- 
 Merchants' Nat. Bank, 127 N. Y. 514, ing its judgment and issuing execu- 
 28 N. E. Rep. 597, a damage suit by tion upon it, thus apparently defeat- 
 one creditor against another was de- ing the lien of their execution and 
 feated. The defendant had procured the benefits which they otherwise 
 a judgment by consent against a cor- would have derived from it." The 
 poration in violation of the statute court adds that plaintiff had no lien 
 forbidding corporate preferences and when defendant levied its judgment, 
 collected its claim. Plaintiff sued the and that redress could not be had in 
 defendant for so doing. The action this form of action. 
 failed. Bradley, J., said: "This is in 3 The authorities establish the right 
 the nature of an action on the case, of a judgment creditor to his action
 
 §§ 62a, 63 RELIEF COLLATERAL TO MAIN ACTION. 121 
 
 § 62a. Reference not ordered. — In New York State an 
 action to set aside a fraudulent conveyance will not be 
 referred. Gilbert, J., said : " References are proper only 
 as aids to facilitate the transaction of business. The 
 growing multiplication of them within the last fifteen 
 years has been an evil prolific of individual injustice and 
 public alarm." 1 
 
 § 63. Relief collateral to main action. — The rule is estab- 
 lished in New York that in surplus-money proceedings in 
 a foreclosure suit, the referee has the authority to inquire 
 as to the validity of liens or conveyances, and they may 
 be attacked as fraudulent. 2 In a reference as to title in 
 partition, a party can assail a mortgage held by another 
 party on the ground that it is fraudulent and void as 
 against creditors. 3 It is asserted that no good reason 
 exists why the fraudulent character of conveyances can- 
 not be tested in such proceedings. When the jurisdic- 
 tion of equity is once acquired, the court has the right to 
 proceed to the end and administer complete justice 
 between the parties. 4 This practice is considered more 
 convenient for the disposition of cases of this character, 
 and avoids the tedious process and increased expense 
 incident to a distinct and separate action instituted for that 
 purpose. Again, actions in aid of an execution at law are 
 ancillary to the original suit, and are, in effect, a continu- 
 
 against rescuers of the person or s Bergen v. Carman, 79 N. Y. 147 ; 
 
 goods of the debtor, seized by the 1 Am. Insolv. Rep. 341. Compare 
 
 sheriff to satisfy the judgment, or Sehafer v. Reilly, 50 N. Y. 61 ; Mutual 
 
 against those who prevent the Life Ins. Co. v. Bowen, 47 Barb. (N. 
 
 seizure of the debtor's goods on exe- Y.) 618; Fliess v. Buckley, 90 N. Y. 
 
 cution, or who conspire to prevent 292. 
 
 the levy of a tax to satisfy a judg- 3 Halsted v. Halsted, 55 N. Y. 1 12. 
 
 ment. Findlay v. McAllister, 113 U. " Manufacturing Co. v. Bradley, 
 
 S. 104, 5 S. C. Rep. 401, and cases 105 U. 8. 182; Oelriclis v. Spain, 15 
 
 cited. Wall. 211 ; Martin v. Tidwell, 36 Ga. 
 
 1 Bushnell v. Eastman, 2 Abb. Pr. 345 ; Souder's Appeal, 57 Pa. St. 498, 
 
 N. S. (N. Y.) 411. 502.
 
 122 REMEDY GOVERNED BY LEX FORI. § 64 
 
 ance of the suit at law to obtain the fruits of a judgment, 
 or to remove obstacles to its enforcement. 1 Usually the 
 titles of adverse claimants cannot be litigated in 
 foreclosure. 2 
 
 § 64. Remedy governed by lex fori. — In a case already 
 cited which arose in Massachusetts, 3 it was said that the 
 law of New York respecting fraudulent conveyances was 
 the same as the common law and the law of Massachu- 
 setts ; and that although choses in action could not be 
 attached or levied upon in New York, yet after execution 
 issued on the judgment at law, such interests might be 
 reached by supplementary proceedings ; while in Massa- 
 chusetts these kinds of rights were subject to trustee 
 process. The court said that the assignment having been 
 found by the judge, before whom the case was tried with- 
 out a jury, to have been made in fraud of the plaintiff, as 
 a creditor of the assignor, and being" under the law of 
 either State voidable by creditors in some form of judicial 
 process, the question whether it should be relieved 
 against on the common-law, or on the equity side of the 
 court, was a question of remedy only, and governed by 
 the lex foi'i. x It may be observed that the general rule 
 that the lex fori governs the remedy controls the right to 
 arrest the debtor. Thus where goods were sold in New 
 York on credit to parties who transacted business in 
 Alabama, and the debtors subsequently disposed of their 
 property in the latter State with intent to defraud their 
 
 ' (Jlafflin v. McDermott, 12 Fed. 4 In the case of a sale of horses and 
 
 Rep. 375, 20 Blatchf. 522. mules that took place in Virginia, 
 
 2 Kinsley v. Scott, 58 Vt. 420 ; Mer- where the stock was subsequently 
 
 chants' Bank v Thompson, 55 X. Y. sent to Pennsylvania for pasturage, 
 
 11 ; Lewis v. Smith, '.) N. Y. 51 t ; and was there seized on a foreign at- 
 
 Ruyter v. Reid, 121 N. Y. 50:>, 24 N. tachment against the vendor, it was 
 
 E. Rep. 791. held that the validity of the transfer 
 
 8 Drake v. Rice, 130 Mass. IK!. See must he tested by the lawsof Virginia. 
 
 § 17. Born v. Shaw, 29 Pa. St. 288.
 
 §64 REMEDY GOVERNED BY LEX FORI. 123 
 
 creditors, the New York Supreme Court held that an 
 order of arrest was properly issued against the defendants 
 by that court 1 In Pritchard v. Norton, 2 the court said : 
 " The principle is that whatever relates merelv to the 
 remedy, and constitutes part of the procedure, is deter- 
 mined by the law of the forum, for matters of process 
 must be uniform in the courts of the same country; but 
 whatever goes to the substance of the obligation, and 
 affects the rights of the parties, as growing out of the 
 contract itself, or inhering in it or attached to it, is gov- 
 erned by the law of the contract." 3 It is foreign to the 
 scope of this treatise to discuss at length the question of 
 how far a transfer of personal property, which is lawful in 
 the owner's domicil, will be respected in the courts of the 
 country where the property is located, and where a dif- 
 ferent rule as to transfer prevails. This is a question 
 upon which the courts are much at variance. It must be 
 remembered that there is no absolute right to have such 
 a transfer respected in the foreign forum, and it is only 
 on a principle of comity that it is ever allowed. And this 
 principle of comity always yields in cases where the laws 
 and policy of the State in which the property is located 
 have prescribed a different rule of transfer from that of 
 the State in which the owner lives. 4 The general rule 
 
 'Claflin v. Frenkel, 3 Civ. Pro. (N. S. 652, 13 S. C. Rep. 466; Metcalf v. 
 
 Y.) 109; Brown v. Ashbough, 40 How. Watertown, 153 U. S. 073, 14 S. C. 
 
 Pr. (N. Y.) 226. See § 191. A fraud- Rep. 947. 
 
 ulent disposition of property in Penn- 4 Green v. Van Buskirk, 7 Wall. 
 sylvania may be made the subject of 151, reversing mb nomine, Van Bus- 
 attachment in New York. Kibbe v. kirk v. Warren, 4 Abb. App. Dec. 1 N . 
 Wetmore, 31 Hun (N. Y.) 424. Y.) 457. Compare Guilhmder v. Eow- 
 
 2 106 U. S. 129 ; Coghlan v. South ell, 35 N. Y. 657 ; Ockerman v. Cross, 
 
 Carolina R. R. Co., 142 U. S. 109, 12 54 N. Y. 29; Howard Nat. Bank, v. 
 
 S. C. Rep. 150. King, 10 Abb. N. C. (N. Y.) 346; 
 
 3 See McDougall v. Page, 55 Vt. People ex rel. Hoyt v. Commissioners 
 
 187, 28 Alb. L.J. 372; Great West- of Taxes, 23 N. V. 235; Chafee v. 
 
 ern Tel. Co. v. Burnham, 162 U. S. Fourth Nat. Bank, 71 Me. 514, and 
 
 339, 16 S. C. Rep. 850, and cases cited, cases cited in the arguments of counsel. 
 
 Compare Bauserman v. Blunt, 147 U. See, also, Matter of Dalpay, 41 Minn.
 
 124 CUMULATIVE REMEDIES. § 65 
 
 that a voluntary transfer of personal property, where- 
 soever situated, is to be governed by the law of the 
 owner's domicil, always yields where the policy of the 
 State where the property is actually located has pro- 
 vided a different rule of transfer. 1 
 
 § 65. Cumulative remedies allowed and disallowed. — We 
 have disclaimed the consideration of fraud in the li^ht of 
 a crime," and entertain no design of noticing the penal 
 statutes enacted for the punishment of fraudulent insol- 
 vents or their co-conspirators. This subject more legiti- 
 mately appertains to a treatise on criminal law, 3 and is a 
 matter regulated by statute, Sometimes resort to the 
 penal statutes conflicts with the pursuit of the civil rem- 
 edy. In a controversy which arose in Maine it was de- 
 cided that one who had commenced an action to recover 
 the penalty provided by the Revised Statutes 4 of that 
 State, for knowingly aiding a debtor in the fraudulent 
 transfer of his property to secure it from the creditors, 
 
 532, 43 N. W. Rep. 564. As to real O'Neil, 44 N. Y. 301 ; Monroe v. Doug- 
 property the rule seems to be that the lass, 5 N. Y. 447. In Barnett v. Kin- 
 validity of the transfer must be ney, 147 U. S. 476, an assignment 
 judged by the law of the State where with preferences made by one citizen 
 the land was situated. So a mort- of Utah to another, valid by the laws 
 gage on land situated in Maine to of Utah, was held to be valid in Idaho 
 secure an antecedent indebtedness, against an attaching creditor as to 
 valid by the laws of Maine, was up- property in Idaho, of which the 
 held in Massachusetts, although not assignee had taken possession, though 
 authorized by the laws of that State. the statutes of Idaho prohibited as- 
 Chipman v. Peabody, 159 Mass. 420, signments containing preferences. 
 34 N. E. Rep. 563. There is See Frank v. Bobbitt. 155 Mass. 112, 
 do presumption that the common- 29 N. E. Rep. 209. 
 law prevails in Russia (Savage v. 'Keller v. Paine, 107 N. Y. 83,13 
 O'Neil, 44 N. Y. 300)— a presumption N. E. Rep. 635. 
 of its existence is indulged in by the 2 See §3. 
 
 courts only in reference to England 3 An indictment alleging the mak- 
 
 and the States which have taken the ing of a fraudulent conveyance is 
 
 common law. [n the absence of proof sufficient where its recitals charge the 
 
 of the foreign law, the law of the language of the statute. State v. 
 
 forum must furnish the rule for the Miller, 98 Ind. 70. 
 
 guidance of the court. Savage v. * Chap. 118, § 51.
 
 § 6$ CUMULATIVE REMEDIES. 1 25 
 
 waived his right to prosecute his suit by filing a petition 
 against his debtor and having him declared a bankrupt, 
 and then causing a suit to be commenced against the 
 alleged fraudulent transferee by the assignee in bank- 
 ruptcy, to recover the value of the property alleged to 
 have been fraudulently transferred. 1 As to civil reme- 
 dies it was decided in Michigan that where a judgment- 
 creditor had elected to treat as fraudulent a conveyance 
 made by his debtor before the judgment, and, notwith- 
 standing the transfer of title, had proceeded to sell the 
 property on an execution, he could not afterward main- 
 tain a bill in equity to set aside the conveyance. 2 The 
 logic of this ruling is scarcely apparent. Again, a credi- 
 tor who has instituted an action at law for the recovery 
 of a debt, and levied an attachment, cannot, before judg- 
 ment, bring a second suit to recover the debt, annul an 
 alleged fraudulent judgment recovered against the debtor 
 and restrain its collection. 3 In New York, on the other 
 hand, a complainant may institute supplementary pro- 
 ceedings and prosecute a suit to establish his judgment 
 as a lien upon real estate ; he may prosecute either or 
 both proceedings until his judgment is satisfied. 4 So he 
 may bring a creditor's action to remove a cloud upon 
 title, and also sell the debtor's land under execution. 5 
 And in Massachusetts a remedy is given by statute, 
 which enables a creditor to maintain a bill to reach any 
 property of a debtor liable to be attached or taken on 
 execution in a suit at law and fraudulently conveyed. 
 Before that statute a creditor could reach property fraud- 
 
 1 Fogg v. Lawry, 71 Me. 215. (N. Y.) 551 ; Schloss v. Wallach, 16 
 
 2 Crimson v. Smith, 47 Mich. 647. Abb. N. C. (N. Y.) 319n, 38 Hun (N. 
 But see Erickson v. Quinn, 15 Abb. Y.) 638, affi'd 102 N. Y. 683. 
 
 Pr. N. 8. (N. Y.) 168. 5 Erickson v. Quinn, 15 A.DD. Pr 
 
 3 Mills v. Block, 30 Barb. (N. Y.) N. S. (X. Y.) 166. 
 
 549. See §85. 6 Public Statutes, Ch. 151, § 3. 
 
 4 Gates v. Young, 17 Weekly Dig.
 
 126 EFFECT OF IMPRISONMENT OF DEBTOR. §§66, 67 
 
 ulently conveyed by attachment and execution. The 
 statute gave him a concurrent remedy in equity to enforce 
 the same right, without having previously recovered a 
 judgment at law, and without admitting other creditors 
 to join in prosecuting the suit. 1 It was decided that this 
 remedy was not superseded by the grant of general equity 
 powers. 2 
 
 § 66. Effect of imprisonment of debtor. — It may be con- 
 sidered as settled law that while the creditor has the body 
 of the debtor in execution on a ca. sa. his right to pro- 
 ceed against propertv is suspended. 3 So long as the de- 
 fendant is in custody the creditor cannot file a bill in 
 chancery to reach his equitable assets. 4 This rule pro- 
 ceeds upon the theory that the arrest and imprisonment 
 of the debtor constitute a satisfaction of the judgment 
 during the continuance of the imprisonment. 5 When 
 the constructive imprisonment is terminated by operation 
 of law, the creditor's remedy is no longer suspended. 6 
 
 ^67. Election of remedies. — In Cone v. Hamilton, 7 the 
 Supreme Court of Massachusetts said it had been decided 
 in that State that levies of executions in favor of creditors 
 passed no title where, at the time of the conveyance (which 
 was before the Stat, of 1844, c. 107, took effect), there was 
 no statute by which land paid for and occupied by a debtor, 
 the legal title to which had never been in him, but had 
 been conveyed by his procurement to other persons in 
 order to secure it from his creditors, could be attached or 
 
 'Bernard v. Barney Myroleum Co., 5 Koenig v. Steckel, 58 N. Y. 475 ; 
 
 147 Mass. 356, 17 N. E. Rep. 887. Bowe v. Campbell, 63 How. Pr. (N. 
 
 Barry v. Al.l.ot. 100 Mass. 396. Y.) 170; Ryle v. Falk, 24 Hun (N. Y.) 
 
 3 See Flack v. State of New York, 2.">. Compare, especially, Kasson v. 
 
 95 N. Y. 469. People. 44 Barb. (N. Y.) 347. 
 
 * Stillwell v. Van Epps, 1 Paige (N. "Sandman v. Seaman, 84 Hun (X. 
 
 , 615; Tappan v. Evans, 11 N. H. Y.) 337, 32 N. Y. Supp. 338. 
 
 321; King v. Trice, 3 [red. Eq. (N. C.) 7 102 .Mass. 57. 
 573.
 
 §6? ELECTION OF REMEDIES. I 27 
 
 taken on execution at law as his property. 1 Gray, }., 
 continuing, said : " Upon this state of facts, either of 
 two remedies was opened to the judgment-creditors. 
 The conveyance being fraudulent as against them, the 
 parties who took the legal title (though not participating 
 in the fraud), paying no consideration for the conveyance, 
 and the equitable title being in the debtor who paid the 
 purchase-money, the judgment-creditors might doubtless 
 have maintained bills in equity to charge the land with 
 their debts. 2 Or, it appearing that the land cannot be 
 held under their levies, they might by scire facias, have 
 obtained new executions on the original judgments. 3 It 
 does not, however, follow that this bill can be maintained 
 in its present form. The plaintiff has acquired no inter- 
 est in those judgments, or in the debts on which they 
 were recovered. The only transfers from the judgment- 
 creditors, under which she claims are quit-claim deeds, 
 without covenants of warranty, of the land taken on 
 execution, which, as the grantors had no title, passed 
 none. Those creditors are not made parties to this suit, 
 either as plaintiffs or defendants, and would, therefore, be 
 at liberty, notwithstanding any decree therein, to pursue 
 their remedy by scire facias against their debtor. It 
 would be inconsistent with the principles and the 
 practice of courts of equity to maintain this bill, upon the 
 ground that the original conveyance was fraudulent and 
 void as against the judgment-creditors, without making 
 them parties to the suit in due form." It may be further 
 observed that a judgment-creditor is not obliged to follow 
 all the fraudulent conveyances which may have been 
 
 1 Hamilton v. Cone, 99 Mass. 478. Johns Ch. (N. Y.) 450 ; Lynde v. Mc- 
 
 3 Huguenin v. Baseley. 14 Ves. 273; Gregor, 13 Allen (Mass.) 182. 
 
 Neate v. Marlborough, 3 Myl. & Cr. 3 Dennis v. Arnold, 12 Met, (Mass.) 
 
 407; Goldsmith v. Russell, 5 DeG., 449; Dewing v. Durant, 10 Gray 
 
 M. & G. 547 ; Bayard v. Hoffman, 4 (Mass. ) 29 ; Gen. Stats, of Mass. c 
 
 103, &22.
 
 [28 creditors' bills. §68 
 
 made by several execution defendants, but may leave 
 some of them to stand while he seeks to set aside 
 others ; : nor can the debtor or the fraudulent alienee, as 
 a general rule, compel the creditor to elect which method 
 of procedure or class of property he will pursue. 2 But 
 after a creditor has made his election between two incon- 
 sistent remedies, he is bound by it. So it was held 
 that a judgment-creditor who had sold on execution 
 the equity of redemption, belonging to his debtor, could 
 not afterwards bring an action to set the mortgage aside 
 as fraudulent. 3 The same rule applies when he sells 
 simply all the debtor's right and title. In such case the 
 right to attack the existing mortgage as fraudulent passes 
 to the purchaser on such sale.* 
 
 § 68. Creditors' bills. — It is said in New York, 5 that 
 the object of a creditor's bill in that State 6 is to reach 
 choses in action and equitable assets of the judgment- 
 debtor which cannot be reached by execution. And, 
 before such a bill can be filed, it is always necessary that 
 an execution should be issued to the county where the 
 judgment-debtor resides, 7 and be returned unsatisfied; 8 
 
 1 First Nat. Bank v. Hosmer, 48 of creditors, may be readied !>\ a 
 
 Mich. 200, 12 N. W. Rep. 212; Miller creditor's bill; a remedy which may 
 
 v. Dayton, 4? Iowa, 312. be considered as having originated in 
 
 'Gray v. Chase, 57 Me. 558 : Vasser the case of Spader v. Davis (5 Johns. 
 
 v. Henderson, 40 Miss. 519 ; Edmunds Ch. [N. Y.] 280, decided by Chancellor 
 
 V. Mister, 58 Miss. TOO ; Baker v. Ly- Kent) in the year 1*21. and winch has 
 
 man, 53 Ga. 339. been very extensively employed since 
 
 »Knoop \. Kelsey, 102 Mo. 291, 14 that time" 
 
 8.W. Rep. 110; Messmore v. Buggard, 6 See 2 R. S. 171 ; 2 Barb. Ch. Pr. 
 
 40 Mich. ."-VJ, N. W. Rep. 853. 147. 
 
 'Knoop %•. Kelsey, 121 Mo. 642,20 'Compare Wadsworth v. Schissel- 
 
 S. W. Rep. 683. bauer, 32 Minn. 87, 19 N. W. Rep. 
 
 Kmx v. Moyer, 54 N. Y. 128. Mr. 890 ; Northwestern Iron Co. v. Central 
 
 Bispham Bays, in his Principles of Trust Co., 90 Wis. 570, 63 N. W. Rep. 
 
 Equity, ;' 346: "In many of the 752, 64 Id. 828. 
 
 States, property of an equitable char- h < 'ompare the llolladay Case, 27 
 
 acter, and property conveyed in fraud Fed. Rep. 845.
 
 § 68 CREDIT" >RS' BILLS. 
 
 and in such an action all the judgment-debtors arc neces- 
 sary parties, unless it can be shown that one omitted is 
 insolvent or a mere surety for the defendant. The filing 
 of a creditor's bill, and the service of process, as we have 
 said, 1 creates a lien in equity upon the effects of the judg- 
 ment-debtor. 2 It has been aptly termed an "equitable 
 levy." 3 It maybe here observed that a creditor's bill, in 
 many of our States, is an appropriate remedy to annul a 
 conveyance in fraud of creditors. It ought always to be 
 resorted to where this latter relief is desired. " A creditor's 
 bill is the continuation of the former controversy, so far 
 as the fruits of the judgment are concerned. The com- 
 plainant asks the aid of the court to reach the assets of 
 the defendant, so as to be made liable to his judgment, 
 which assets have been secreted or fraudulently assigned 
 to defeat the judgment." 4 Usually creditors' bills are 
 largely regulated by statute, and the relief extended is 
 often, in a measure, dependent upon the local laws gov- 
 erning the subject. It may be asked in what respects a 
 creditor's bill differs from an ordinary bill in equity, pro- 
 secuted to cancel a covinous conveyance or remove a 
 fictitious transfer. The answer is that the creditor's bill, 
 at least in some States, is broader and more effectual in its 
 operations and results. The ordinary bill or suit in equity 
 is generally brought to unravel some particular transac- 
 tion, and to annul some particular conveyance, or remove 
 
 1 See § 61. 25 Barb. (N. Y.) 662 : I ieorge \ . Wil 
 
 2 Per Swayne, J., in Miller v. liamson, 26 Mo. 190; State v. Bowen, 
 Sherry, 2 Wall. 249. Citing Bayard 38 W. Va. 91, is S. E. Rep. 375; 
 v. Hoffman, 4 Johns. Ch. (N. Y.) 450 ; Sweeny v. Grape Sugar Refining 
 Beck v. Burdett, 1 Paige (N. Y. 308; Co., 30 W. Va. 443, I S. E. Rep. 431; 
 Storm v.Waddell, 2Sandf. Ch. (N.Y.) First Nat. B'k v. Shuler, L53 NY. I 12. 
 494; Corning v. White, 2 Paige (N. 3 Tilford v. Burnham, 3 Dana(Ky.) 
 Y.) 569 ; Edgell v. Haywood, 2 Atk. 110 ; Miller v. Sherrj . 2 Wall. J r.». 
 352. See Brown v. Nichols, 42 N. Y. 4 Hatch v. Dorr, l McLean 113 ; 
 26; Lynch v. Johnson, 48 N. Y. 33; Havi,ls.»n v. Burke, 143 111. 139, 32 X. 
 Roberts v. Albany & W. S. R. R. Co., E. Rep. 511. 
 
 9
 
 130 
 
 CREDITORS BILLS. 
 
 68 
 
 a specific cloud on a particular title. 1 A creditor's bill, 
 on the other hand, is usually in the nature of a bill of dis- 
 covery, 2 and is more extended in its results ; not only does 
 it reach property described therein, but by means of this 
 form of remedy every species of assets, and even debts 
 due the debtor of which the creditor knew nothing, 
 and which were not referred to in the bill, may 
 be reached through the instrumentality of a receiver, 
 and applied to the claim. For this reason it is appro- 
 priately called an omnibus bill. 3 " Creditors' bills," says 
 
 1 See Brown v. Nichols, 42 N. Y. 
 26 ; Lynch v. Johnson, 48 N. Y. 33 ; 
 Roberts v. Albany & W. S. R. R. Co., 
 25 Barb. (N. Y.) 662; George v. Wil- 
 liamson, 26 Mo. 1S»0. 
 
 2 See Newman v. Willetts, 52 111 101. 
 
 3 In Conro v. Port Henry Iron Co. 
 (12 Barb. [N. Y.] 58), the court said : 
 " There are two sorts of creditor's bills 
 known to our jurisprudence; the one is 
 the statutory bill, framed under 2 R. S. 
 173, in aid of a judgment-creditor who 
 has exhausted his remedy at law, to 
 enable him to discover the debtor's 
 property, and to reach his equitable in- 
 terests. This bill was known before 
 the statute. (Hadden v. Spader, 20 
 Johns. [N. Y.] 554.) And the statute 
 was framed to aid in carrying out the 
 principle of that and other like deci- 
 sions. In proceedings under such bill, 
 it had always been held that several 
 creditors, by judgment, of the same 
 debtor, might unite in the action, 
 though they had no other common in- 
 terest than in the relief sought. (Ed- 
 meston v. Lyde, 1 Paige [N. Y.] 637 ; 
 Wakeman v. Grover, 4 Paige [N. Y.] 
 23.) All the judgment-creditors were 
 proper parties, though not necessary 
 parties, because the action could nol be 
 
 ii itained by n single judgment-cred- 
 itor. The same ruleexisted before I he 
 statute, and was applied in a creditor's 
 
 suit by Chancellor Kent in McDermutt 
 v. Strong (4 Johns. Ch. [N. Y.] 687). 
 The other class of creditors' suits, not 
 depending upon any statute, are suits 
 brought for the administration of as- 
 sets, to reach property fraudulently 
 disposed of, or held in trust, etc. The 
 bill in such case is filed in behalf of the 
 plaintiff or plaintiffs, and all others 
 standing iu a similar relation, who may 
 come in under such bill and the decree 
 to be made. It may be filed by simple 
 contract creditors; and does not re- 
 quire a judgment to have been ob- 
 tained. (Barb. Chan. Prac. vol. II, p. 
 149)." In Fusze v. Stern, 17 Bradw. 
 (111.) 432, the court said : " There are 
 several kinds of original bills known 
 to our laws, wherein courts of equity 
 entertain jurisdiction to aid a creditor 
 in obtaining satisfaction of his claim 
 from his debtor, and which are gen- 
 erally denominated creditors' bills, 
 not only by the members of the legal 
 profession, but by the courts as well, 
 as where a debtor seeks to satisfy his 
 debt out of some equitable estate of 
 the defendant which is not subject to 
 levy and sale under an execution at 
 law ; then before be can have the aid 
 of a <<>mt of equity to decree the 
 cqiiifiibfc estate, subject to the pay- 
 ment of his debt, the creditor must 
 show by his bill, as in other cases
 
 68 
 
 CREDITORS BILLS. 
 
 131 
 
 Mr. Bispham, 1 " are bills filed by creditors for the pur- 
 pose of collecting their debts out of the real or personal 
 property of the debtor, under circumstances in which the 
 process of execution at common law could not afford 
 relief. This equitable remedy may be made use of dur- 
 ing the life-time of the debtor, or after his death. Cred- 
 itors' bills filed against the estate of a decedent, gen- 
 
 where invoking equitable jurisdiction, 
 that he has no adequate remedy at 
 law, which can only be shown by al- 
 leging and proving that he has ex- 
 hausted all the means provided by the 
 law for the collection of his debt, viz., 
 a recovery of judgment, the issuing 
 of execution, and its return nulla 
 bona by the officer charged with its 
 collection. A nother kind of bill analo- 
 gous to this is where the creditor, hav- 
 ing recovered judgment against his 
 debtor, seeks to remove a fraudulent 
 conveyance or incumbrance out of 
 the way of an execution issued or to 
 be issued upon such judgment. In 
 such case equity will afford relief on 
 the ground that such judgment is an 
 equitable lien upoii real estate, nomi- 
 nally held by a third party under such 
 fraudulent conveyance, and the cred- 
 itor having this lien is entitled to levy 
 upon and sell upon his execution such 
 real estate discharged and untram- 
 meled from the cloud upon it caused 
 by such conveyance. In bills of this 
 kind the complainant need not even 
 prove the return of execution nulla 
 bona, as such conveyances are void by 
 the statute, and courts of equity do 
 not hesitate to declare them void be- 
 cause of such fraud, and place the 
 creditor in the same position, respect- 
 ing his judgment, that he would have 
 occupied if such conveyance had not 
 been made. A recovery of a judg- 
 ment which atTtime of filing the bill 
 
 would, in absence of such conveyance, 
 be a legal lien under the statute upon 
 the land, is all that is necessary to 
 aver and prove." Citing Miller v. 
 Davidson, 8 111. 518; Weigtman v. 
 Hatch, 17 111. 281 ; Shufeldt v.Boehm, 
 96 111. 561. See also McKenna v. Crow- 
 ley, 16 R. I. 364, 17 Atl. Rep. 354. Mr. 
 Bispham says, in Principles of Equity, 
 § 527: "The threefold advantage of 
 reaching property otherwise exempt, 
 of setting aside fraudulent convey- 
 ances, and of discovery, renders a 
 creditor's bill a very effective instru- 
 ment for the collection of debts." 
 Creditors' bills are much used against 
 insolvent corporations where the capi- 
 tal stock is treated as a trust fund. 
 See Sawyer v. Hoag, 17 Wall. 610 ; 
 Sanger v. Upton, 61 U. S. 56 ; Hol- 
 lins v. Brierfield Coal & Iron Co., 150 
 U. S. 381 ; Hatch v. Dana, 101 U. S. 
 205 ; County of Morgan v. Allen, 103 
 TJ. S. 498; Crandall v. Lincoln, 52 
 Conn. 73 ; Terry v. Anderson, 95 U. 
 S. 628, 636 ; Clark v. Bever. 139 U. 
 S. 110 ; Fogg v. Blair, 139 U. S. 125 : 
 Messersmith v. Sharon Savings Bank, 
 96 Pa. St. 440 ; Stone v. Chisolm, 113 
 U. S. 302, 5 S. C. Rep. 497. Such a 
 bill can be entertained by a Federal 
 court by virtue of the jurisdiction at- 
 taching in cases of fraud and inde- 
 pendent of any statute. Lewi-, v. 
 Shainwald, 48 Fed. Rep. 492. 
 
 1 Bispham's Principles of Equity, 
 § 525.
 
 132 DIRECT AND COLLATERAL ATTACK. §69 
 
 erally, though not necessarily, partake of the nature of 
 administration suits." 
 
 § 69. Direct and collateral attack. — Exceptional doctrine in 
 Louisiana. — A novel principle relating to covinous con- 
 veyances, derived from the civil law, prevails in Louisiana. 
 If a sale is fraudulent as to creditors, it must be regularly 
 set aside in a direct action or proceeding instituted for 
 that purpose. Not only is it binding between the original 
 parties, which is the universal rule, 1 but it is conclusive 
 upon third parties until nullified by the form of action 
 which the law provides, and the possession of the vendee 
 is legal until the fraudulent instrument is avoided in 
 the due course of law. 2 The reasons for this practice 
 are ingeniously given in Peet v. Morgan, 3 by Porter, J., 
 who there says : " Of its correctness the court enter- 
 tains no doubt. It is clearly supported by authority, 
 and it is sanctioned by reason and utility. The principle 
 on which it rest is,, that men are presumed to act 
 honestly until the contrary is proved ; that the con- 
 veyances alleged to be fraudulent are prima facie cor- 
 rect and fair ; and that it is improper in opposition to these 
 presumptions, the creditor should exercise rights that 
 could only properly belong to him, in case the acts of his 
 debtor were null and of no effect. In many instances, 
 should a contrary doctrine prevail, sales which were alleged 
 fraudulent might turn out to be bona fide, and the pur- 
 chaser be deprived of the use and enjoyment of property 
 which was honestly his. In the uncertainty which must 
 prevail until the matter undergoes a judicial investigation, 
 
 ' Sir 1 lhap. XXVI. missioners, 7 Rob. (La.) 234 ; Presas v. 
 
 2 Yocum v. Bullit, 6 Mart. N. S. Lanata, 11 Rob. (La.) 288 ; Collins v. 
 
 (La.) 334, 17 Am Dec. 184, and the Shaffer, 20 La. Ann. 41; Payne 
 
 learned note of \. < '. Freeman, Esq. v. Graham, 23 La. Ann. 771 ; Ford v. 
 
 s.-c Barbarin v. Saucier, 5 Mart. N.S. Douglas, 5 How. 160. 
 (La.) 361; I." Goaster v. Barthe, 2 :; Mart. X. S. (La.) 1:57. 
 Rob. (La.) 388 ; Drumrnond v. Com-
 
 §69 DIRECT AND COLLATERAL ATTACK. I 33 
 
 it is certainly the wisest course, and the one most con- 
 ducive to general utility, to consider the thing sold as 
 belonging to him in whom the title is vested." It is idle 
 to speculate as to the utility of this doctrine, for it is en- 
 tirely opposed to the general practice in the other States, 
 and 'to the English and American authorities. The 
 fraudulent transfer is not generally regarded as being 
 effectual against creditors ; it does not as to them divest 
 the debtor's title, but his interest remains subject to their 
 remedies, and may be seized and sold on execution. 1 
 The property may be treated and reached by creditors as 
 though the transfer had never been made. 2 Thus in 
 Imray v. Magnay, 3 the court said ; " It is now of fre- 
 quent occurrence that the sheriff is bound to take goods 
 which have been fraudulently conveyed or assigned to 
 defeat creditors, and is responsible in an action for a 
 false return at the suit of a creditor." Though the prin- 
 ciple embodied in these Louisiana cases may seem logical 
 and fair upon its face, certainly its practical operation 
 would not be commensurate with the needs of creditors 
 generally. The creditor cannot be expected to lay for- 
 mal siege to every semblance of an obstruction that the 
 debtor rears in his pathway. The theory concerning a 
 fraudulent conveyance is that it has only the color and 
 
 1 Jacoby's Appeal, 67 Pa. St. 434 ; 4 Col. 595 ; citing Jackson v. Myers, 
 
 Hoffman's Appeal, 44 Pa. St. 95 ; 11 Wend, (N. Y.) 535 ; Jackson v. 
 
 Russell v. Dyer, 33 N. H.186; Allen v. Bnrgott, 10 Johns. (N. Y.) 456 ; Rem- 
 
 Berry, 50 Mo. 90 : Ryland v. Callison, ington v. Linthicum, 14 Pet. 84; 
 
 54 Mo. 513; Fowler v. Trevein, 16 Rogers v. Brent, 10 111.580; Jamison 
 
 Ohio St; 493 ; Staples v. Bradley, 23 v. Beaubien, 4111. 114 ; Baze v. Arper, 
 
 Conn. 167 ; Foley v. Bitter, 34 Md. 6 Minn. 220 ; Cook v. Swan, 5 Conn. 
 
 646 ; Gormerly v. Chapman, 51 Ga. 140 ; Marcy v. Kinney, 9 Conn. 397 ; 
 
 421; Freeman on Executions, § 136. Lillie v. Wilson, 2 Root (Conn.) 517. 
 
 " In an action of ejectment it is com- -Russell v. Winne, 37 N. Y. 591; 
 
 petent to show that a conveyance re- Brown v. Snell, 46 Me. 490 : Booth v. 
 
 lied upon by one of the parties to the Bunce, 33 N. Y. 139 ; Angier v. Ash, 
 
 action was made with intent to de- 26 N. H. 99. 
 
 fraud creditors." Knox v. McFarran, 3 11 M. &. W. 267.
 
 134 CASES OF FRAUD ON WIFE. § 70 
 
 appearance of a valid act, and is not in itself effectual ; 
 why then should the creditor be forced to undergo the 
 vexatious delay and expense incident to procuring a 
 formal adjudication vacating every covinous alienation of 
 property which the ingenuity of the debtor may devise ? 
 If the transfer is in fact fraudulent, then, by seizing and 
 selling the property on execution, the controversy is 
 practically concluded without further trouble or suit, 
 and the fraudulent alienee will not be rash enough to 
 attempt to reclaim it. On the other hand, if the transfer 
 is bona fide, the creditor is legally accountable for the 
 seizure. If the creditor unjustly refuses to treat the 
 transfer as valid the purchaser, if it relate to realty, may 
 hold the possession and defend in ejectment ; while if it 
 be personalty, he may recover it by replevin or sue in 
 trover. In either case, if the vendee claims the property, 
 indemnity would be exacted by the officer making the 
 seizure. Under the Louisiana system a debtor, by 
 selecting an irresponsible vendee, could shield him with 
 a simulated transfer, and enable him to dissipate the 
 property in practical defiance of the creditor. 
 
 § 70. Forms of relief in cases of fraud on wife. — Special 
 treatment of the relationship of husband and wife as bear- 
 ing upon fraudulent transfers will be found in the body of 
 the work. 1 We may allude here to the rule that where a 
 husband has fraudulently alienated his real property, as 
 against the rights of his wife or prospective wife, she may, 
 even during his lifetime, bring suit to annul the deed as 
 a fraud upon her right of dower ; ~ for an inchoate right of 
 dower is an interest which the courts will protect. 3 It is 
 as much a fraud for a man to place his property out of his 
 
 'See Chap. XX. ; Mills v. Van Voorhies, 20 N. Y. 
 
 2 Youngs v. Carter, 10 Hun (X. Y.) 412; Simar v. Canaday, .53 N. Y. 
 
 194 ; Petty v. Petty, 4 B. Mon. (Ky.) 293. 
 210.
 
 § yi PROCEDURE IN FEDERAL TRIBUNALS. 1 35 
 
 hands for the purpose of avoiding the right of dower 
 which is about to attach to it, as it is for a debtor who 
 contemplates the contraction of debts to voluntarily dis- 
 pose of his property in order to defeat the efforts of 
 future creditors to secure their payment. The latter 
 result, it is conceded, as elsewhere shown, 1 cannot be suc- 
 cessfully accomplished. 2 The wife may in such cases 
 maintain a bill in equity to reach the property fraudu- 
 lently conveyed, 3 or she may, according to some of the 
 cases, file a bill in chancery to recover her dower in the 
 property as though no conveyance had ever been 
 executed. 4 
 
 § 71. Procedure in Federal tribunals. —Statutes passed by 
 State legislatures affecting rights of creditors, being local 
 enactments and involving a rule of property, the Federal 
 courts will adopt the construction which has been given 
 to the statutes by the highest judicial tribunal of the 
 State, 5 even though, were it an open question " depend- 
 ing upon the general principles of jurisprudence," the 
 conclusion of the court might have been different. 6 A 
 Federal court is bound to apply such a rule of property 
 precisely as though it were sitting as a local court in the 
 State ; and this is true as to the observance of a State rule 
 governing voluntary conveyances, 7 general assignments, 8 
 
 1 See Chap. VI. Beach v. Viles, 2 Pet. 675. See Wil- 
 
 2 See Savage v. Murphy, 34 N. Y. Hams v. Kirtland, 13 Wall. 306 ; Ross 
 508 ; Case v. Phelps, 39 N. Y. 164. v. M'Lung, 6 Pet. 283 ; Morse v. Rib- 
 Wilson v. Hutchinson, 120 Mass. let, 22 Fed. Rep. 501. 
 
 27 ; Petty v. Petty, 4 B. Mon. (Ky.) 6 Nichols v. Levy, 5 Wall 443. 
 
 215. 1 Lloyd v. Fulton, 91 U. S. 485. 
 
 4 See Brown v. Bronson, 35 Mich. 8 Parker v. Phetteplace, 2 Cliff. 70 ; 
 
 415 ; Jiggitts v. Jiggitts, 40 Miss. 718. Jaffray v. McGehee, 107 U. S. 364, 2 
 
 6 Nichols v. Levy, 5 Wall. 443, 444; S. C. Rep. 367; Sumner v. Hicks. 2 
 
 Sumner v. Hicks, 2 Black, 532 ; Dun- Black, 532 ; Union Bank v. Kansas 
 
 das v. Bowler, 3 McLean, 397 ; Hey- City Bank, 136 U. S. 223, 10 S. C. Rep. 
 
 dock v. Stanhope, 1 Curtis, 471; 1013.
 
 136 PROCEDURE IN FEDERAL TRIBUNALS. §71 
 
 exemptions, 1 or sales rendered void for want of a change 
 of possession." And sometimes relief may be had in a 
 Federal court where the jurisdiction of the State court 
 would have proven imperfect. 3 Where a State court 
 acquires possession and control over an insolvent debtor's 
 property it has power to dispose of it and to give a good 
 title. To this extent, as against a Federal court, the 
 State law is a rule of property. 4 Where a creditor's suit 
 is removed from a State court to a Federal court on the 
 ground that the controversy is between citizens of differ- 
 ent States, jurisdiction is not lost by admitting as plain- 
 tiffs other creditors who are citizens of the same State as 
 the defendants. 5 As we have shown, the local law where 
 the property has its situs governs in controversies to 
 reach such property by creditors. 6 It may be here 
 observed that leave to sue and defend in forma pauperis 
 will be accorded to infants in the Federal courts, though 
 a different rule prevailed in the State tribunals, 7 and that 
 equity jurisdiction in the Federal courts is wholly inde- 
 pendent of the local laws of the State, 8 and is the same 
 in its nature and extent in all the States ; and that 
 Federal courts are bound to proceed in equity causes 
 according to the principles, rules and usages which belong 
 
 'Wilson v. Perrin, 62 Fed. Rep. 629. 7 Ferguson v. Dent, 15 Fed. Rep. 
 
 2 Allen v. Massey, 17 Wall. 351. 771. See Southworth v. Adams, 2 
 
 See Howard v. Prince, 11 N. B. R. Flipp. 282. in notis. 
 
 327. As to supplementary proceed- 8 In Hollins v. Brierfield Coal & 
 
 inge in Federal courts, see § 61, n. Iron Co., 150 U. S. 379, 14 S. C. Rep. 
 
 Si e Gorrell v. Dickson, 26 Fed. 127, the court say: "The line of 
 
 Rep. 454. demarcation between equitable and 
 
 4 Burt v. Keyes, 1 Flipp. 62. See legal remedies in the Federal courts 
 
 Wiswall v. Sampson, 14 How. 52; cannot be obliterated by State legisla- 
 
 Williams v. Benedict, 8 How, 107; tion." See Cates v. Allen, 149 U. S. 
 
 Payne v. Drewe, 4 East, 523. 451, 13 S. C Rep. 883, 977 ; Rich v. 
 
 "Stewart v. Dunham, 115 TJ. S. 61, Braxton, 158 U. S. 405, 15 S. C. Rep. 
 
 5 S. C. Rep. 1163. 1006. 
 
 'Spindle v. Shreve, 111 U.S. 542,4 
 S. C. Rep. 522.
 
 § 7 2 RECAPITULATION. I 37 
 
 to the courts of chancery, as contradistinguished from 
 common-law courts. 1 But " the general proposition as 
 to the enforcement in the Federal courts of new equitable 
 rights created by the States, is undoubtedly correct, sub- 
 ject, however, to this qualification, that such enforcement 
 does not impair any right conferred, or conflict with any 
 inhibition imposed, by the Constitution or laws of the 
 United States." 2 Federal courts have no jurisdiction to 
 entertain a creditor's bill for a simple contract creditor. 3 
 Questions as to appellate jurisdiction in Federal 
 tribunals will be presently considered. 4 
 
 § 72. Recapitulation. — As regards the enforcement of a 
 judgment against real property fraudulently conveyed a 
 creditor then may be said to have three modes of obtain- 
 ing satisfaction of his demand. 
 
 First. To obtain a decree of a court of equity declaring 
 the conveyance fraudulent, setting it aside, and thereafter 
 proceeding to sell the land on execution. 
 
 Second. By inserting in the decree in an equitable 
 action, in addition to the provisions avoiding the transfer, 
 a further clause appointing a referee to sell at public auc- 
 tion and directing the debtor to unite in the conveyance ; 
 or a clause appointing a receiver and directing that the 
 debtor convey the land to him and that he sell it. 
 
 Third. The creditor may sell the land on execution, 
 and the purchaser may then set up the fraud in the 
 
 1 Gordon v. Hobart, 2 Sumner, 405 ; right. Adler v. Eckler, I McCrarj 
 
 Burt v. Keyes, 1 Flipp. 69, per Story, 257. 
 
 J.; McFarlane v. Griffith, 4 Wash. 2 Scott v. Neely, 140 U. S. 109, 11 
 
 C. C. 585 ; Gaines v. Relf, 15 Pet. 9. S. C. Rep. 712. 
 
 See Green v. Creighton, 23 How. 90. 3 England v. Russell, 71 Fed. Rep. 
 
 A creditor having a standing in the 818 ; Cates v. Allen, 149 U. S. 458, 13 
 
 Federal courts can contest the validity S. C. Rep. S83, 997. 
 
 of a voluntary assignment, and a 4 See Chap. XXVII. 
 State law cannot deprive him of this
 
 I38 RECAPITULATION. § 72 
 
 debtor's conveyance, and if this is established, obtain a 
 judgment entitling him to the possession of the land. 1 
 
 The advantages incident to a judicious selection from 
 these remedies in particular cases should not be over- 
 looked. 2 
 
 Stated in a form of more universal application, it is, as 
 we have seen, a familiar and unquestioned doctrine of 
 equity, that the court has power to aid a judgment-creditor 
 to reach the property of his debtor, either by removing 
 fraudulent judgments or conveyances which obstruct or 
 defeat the plaintiff's remedy under the judgment, or by 
 appropriating toward the satisfaction of the judgment 
 rights or equitable interests of the debtor, which are not 
 the subject of legal execution. 3 
 
 1 Dawley v. Brown, 65 Barb. (N. 3 Robert v. Hodges, 16 N. J. Eq. 
 Y.) 120. 302. 
 
 2 See Chap. XI.
 
 CHAPTER IV. 
 
 STATUS OF ATTACKING CREDITORS. 
 
 §73. 
 74. 
 
 76. 
 
 77. 
 78. 
 79. 
 
 81. 
 
 Rights of creditors at large. 
 
 Judgment conclusive as to in- 
 debtedness. 
 
 Creditor must have lien before 
 filing bill. 
 
 Judgments sufficient. 
 
 Judgments insufficient. 
 
 Foreign judgments. 
 
 Creditors of a decedent. 
 
 Rule as to judgments in equitable 
 actions. 
 
 Specific lien by attachment. 
 
 82. 
 
 83. 
 84. 
 
 86. 
 
 87. 
 
 88. 
 
 Property of the debtor taken in 
 name of third party. 
 
 When judgment is unnecessary. 
 
 Absconding and non-residen1 
 debtors. 
 
 Practice in Indiana, North Caro- 
 lina, Alabama and Texas. 
 
 Return of execution unsatisfied. 
 
 Distinction between realty and 
 personalty as to issuance of 
 execution. 
 
 Raising the objection. 
 
 " Courts of equity are not tribunals for the collection of debts."— Webster v. Clark, 25 Me. 
 314. 
 
 §73. Rights of creditors at large. — A creditor at large, 
 commonly called a simple creditor, cannot assail, as fraudu- 
 lent against creditors, an assignment or transfer of property 
 made by his debtor, until the creditor has first established 
 his debt by the judgment of a court of competent jurisdic- 
 tion, and has either acquired a lien upon specific property, 
 or is in a situation to perfect a lien thereon, and subject it 
 to the payment of his judgment, upon the removal of the ob- 
 stacle presented by the fraudulent assignment or transfer. 1 
 
 1 Southard v. Benner, 72 N. Y. 426. 
 See Case v. Beauregard, 101 TJ. S. 668 ; 
 Cates v. Allen, 149 U. S. 457, 13 S. C. 
 Rep. 883, 977, citing the text : Spel- 
 man v. Friedman, 130 N. Y. 425, 20 
 N. E. Rep. 765 ; England v. Russell, 
 71 Fed. Rep. 818 ; Taylor v. Bowker, 
 111 U. S. 110, 4 S. C. Rep. 397; Briggs 
 v. Oliver, 68 N. Y. 336; Kyle v. 
 O'Neil, 88 Ky. 127, 10 S. W. Rep. 275; 
 Chadbourne v. Coe, 10 U. S. App. 78, 
 
 2 C. C. A. 327, 51 Fed. Rep. 479; 
 Morrow Shoe Mfg. Co. v. Peabody, 
 18 U. S. App. 256, 6 C. C. A. 508, 
 57 Fed. Rep. 685; Scott v. Neely, 1 10 
 TJ. S. 106, 11 S. C. Rep. 712; Trow- 
 bridge v. Bullard, 81 Mich. 451, 45 N. 
 W. Rep. 1012 ; Klosterman v. Mason 
 County Cent. R. Co., 8 Wash. 281, 
 36 Pac. Rep. 136 ; Weber v. Weber, 90 
 Wis. 467, 63 N. W. Rep. 757; Clarke 
 v. Laird, 60 Mo. App. 289 ; Fleming
 
 140 
 
 RIGHTS OF CREDITORS AT LARGE. 
 
 §73 
 
 This principle is elementary. 1 A rule of procedure 
 which allowed any prowling creditor, before his claim 
 
 v. Grafton, 54 Miss. 79 ; Francis v. 
 Lawrence, 48 N. J. Eq. 511, 22 Atl. 
 Rep. 259 ; Hollins v. Brierfield Coal 
 & Iron Co., 150 U. S. 371, 14 S.C. Rep. 
 127 ; Weaver v. Haviland, 142 N. Y. 
 534, 37 N. E. Rep. 641 ; Whitney v. 
 Davis, 118 N. Y. 256, 42 N. E. Rep. 
 661 ; Frothhlgham v. Hodenpyl, 135 
 N. Y. 630, 32 N. E. Rep. 240 ; Talbott 
 v. Randall, 3 N. Mex. 226. 5 Pac. Rep. 
 533 ; Goode v. Garrity, 75 la. 713, 38 
 N. W. Rep. 150 ; Arbuckle Bros. Coffee 
 v. Werner, 77 Texas, 45, 13 S. W. Rep. 
 963. See §52. 
 
 1 Dodd v. Levy, 10 Mo. App. 122 ; 
 Smith v. Railroad Co., 99 U. S. 401 ; 
 Turner v. Adams, 46 Mo. 95 ; Crim v. 
 Walker, 79 Mo. 335 : Dawson v. Cof- 
 fey, 12 Ore. 519, 8 Pac. Rep. 838; Bax- 
 ter v. Moses, 77 Me. 465 ; Bassett v. 
 St. Albans Hotel Co., 47 Vt. 314; Pen- 
 dleton v. Perkins, 49 Mo. 565 ; Jones 
 v. Green, 1 Wall. 330; Skeele v. Stan- 
 wood, 33 Me. 309 ; Meux v. Anthony, 
 11 Ark. 411 ; Webster v. Clark, 25 
 Me. 313 ; Voorhees v. Howard, 4 
 Keyes (N. Y.) 371 ; Barrow v. Bailey, 
 5 Fla. 9 ; Burnett v. Gould, 27 Hun 
 (N. Y.) 366; Reubens v. Joel, 13 N. Y. 
 488; Alnutt v. Leper, 48 Mo. 319; 
 Mills v. Block, 30 Barb. (N. Y.) 552 ; 
 Martin v. Michael, 23 Mo. 50 ; Public 
 Works v. Columbia College, 17 Wall. 
 530; Kent v. Curtis, 4 Mo. App. 121 ; 
 Tate v. Liggat, 2 Leigh (Va.) 84 ; 
 Greenway v. Thomas, 14 111. 271 ; 
 Fletcher v. Holmes, 40 Me 364; Adsit 
 v. Butler, 87 N. Y. 585 ; Tyler v. 
 Peatt,30 Mich. 63 ; Tolbert v. Horton, 
 31 Minn. 520, 18 N. W. Rep. 647; Vas- 
 ser v. Henderson, 40 Miss. 519; Peo- 
 ple's Savings Bank v. Bates, 120 U. 
 S. 562; 7 S. C. Rep. 679: McKinley v. 
 Bowe, 97 N. Y. 93 : Webster v. Law- 
 rence, 17 Hun (N, Y.) 566; Lichten- 
 berg v. Herdtf elder, 33 Hun (N. Y.) 
 
 57 : Bennett v. Stout. 98 111. 47 ; De- 
 troit, etc. Rolling Mills v. Ledwidge, 
 162 111. 305, 44 N. E. Rep. 751 ; Mc- 
 Auliffe v. Farmer, 27 Mich. 76; Smith 
 v. Millett, 12 R. I. 59 ; Ferguson v. 
 Bobo, 54 Miss. 121 ; Claflin v. McDer- 
 mott, 12 Fed. Rep. 375 ; Haggerty v. 
 Nixon, 26 N. J. Eq. 42 ; Cropsey v. 
 McKinney, 30 Barb. (N. Y.) 47; Stew- 
 art v. Fagan, 2 Woods, 215 ; McMinn 
 v. Whelan, 27 Cal. 300; Hunt v. Field, 
 
 9 N. J. Eq. 36: Robinson v. Stewart, 
 
 10 N. Y. 189 ; McDermott v. Blois, 1 
 R. M. Charlt. (Ga.) 2S1 ; Sturges v. 
 Vanderbilt, 73 N. Y. 384 ; Evans v. 
 Hill, 18 Hun (N. Y.) 464 ; Sexey 
 v. Adkinson, 34 Cal. 346 ; Dahlman 
 v. Jacobs, 15 Fed. Rep. 863 ; Miller v. 
 Miller, 7 Hun (N. Y.) 208; Griffin v. 
 Nitcher, 57 Me. 270 : Nugent v. Nu- 
 gent, 70 Mich. 52, 37 N. W. Rep. 706 ; 
 See Ex parte Boyd, 105 U. S. 653. 
 Compare Case v. Beauregard, 101 U. 
 S. 688, and see Taylor v. Bowker, 111 
 U. S. 110. In Alabama "a creditor 
 without a lien may file a bill in chan- 
 cery to subject to the payment of his 
 debt any property which has been 
 fraudulently transferred, or attempted 
 to be fraudulently conveyed, by his 
 debtor." Revised Code, § 3446. In 
 construing this statute the court said 
 that it was obviously the intention of 
 the legislature to enlarge the juris- 
 diction of the court of chancery, and 
 in cases where the simple and pure 
 relationship of debtor and creditor 
 existed to invest the creditor without 
 a lien or a judgment with the privi- 
 lege formerly confined to judgment- 
 creditors. Reynolds v. Welch, 47 Ala. 
 200. It must appear that the debt has 
 become due and that he is in a posi- 
 tion to enforce it at law. Freider v. 
 Lienkauff, 92 Ala. 469, 8 So. Rep. 758; 
 McGhee v. Importers' & T. Nat. Bank,
 
 § 73 RIGHTS OF CREDITORS AT LARG1 . 141 
 
 was definitely and finally established by formal judg- 
 ment, and without reference to the character of his 
 demand, to file a bill to discover equitable assets, or to 
 impeach transfers, or interfere with the business affairs of 
 the alleged debtor, it is asserted would, manifestly, be 
 susceptible of the grossest abuse. A more powerful 
 weapon of oppression of a debtor, could not be placed 
 at the disposal of unscrupulous litigants. x A 
 creditor at large, 2 having no lien or trust, 3 is not 
 favored in the class of litigation under consideration, 4 
 and, generally speaking, has absolutely no status in 
 court for the purpose of filing a creditor's bill. 5 
 The possibility of a judgment will not suffice. 6 The 
 rule is peremptory. " A court of equity never inter- 
 poses," says Rufifin, C. J., 7 " in behalf of a mere legal 
 demand, until the creditor has tried the legal remedies, 
 and found them ineffectual." It was recently said in 
 New York, " the creditor must pursue his remedy at 
 
 93 Ala. 192, 9 So. Rep. 734. In Mis- Compare Manufacturing Co. v. Brad 
 
 sissippi equity is given jurisdiction by ley, 105 U. S. 175. 
 
 section 503 of the Code of 1892, even 4 Herring v. New York, L. E. & W. 
 
 where no judgment has been obtained R. R. Co., 63 How. Pr. (N. Y.) 502. 
 
 or execution been returned. The debt 5 Dunlevy v. Tallmadge, 32 N. V. 
 
 must be actually due before the bill is 459. But the simple contract credi- 
 
 filed. Browne v. Hernsheim, 71 Miss, tor is not always without redress in 
 
 574, 14 So. Rep. 36. The statute in cases where a fraudulent disposition 
 
 West Virginia recognizes the same of property has been made An at- 
 
 rule. State v. Bowen, 38 W. Va. 91, tachment or process in that aature 
 
 18 S. E. Rep. 375. So in Indiana, see maybe secured against the fraudu- 
 
 Field v. Holzman, 93 Ind. 205. Same lent debtor, and the property iuiprop- 
 
 rule applied in Brown v. J. Wayland erly transferred, or any other prop 
 
 Kimball Co., 84 Me. 492, 24 All. Rep. erty the debtor may have, can be 
 
 1007. seized under such provisional process 
 
 1 Cited in Artman v. Giles, 155 Pa. and held pending the suit. 
 
 St. 417, 26 Atl. Rep. 668. See Swan 6 Griffin v. Nitcher, 57 Me. 272. 
 
 Land & Cattle Co. v. Frank, 148 U. Compare Crompton v. Anthony, IS 
 
 S. 612, 13 S. C. Rep. 691. Allen (Mass.) 36 ; Stephens v. White- 
 
 2 Button v. Rathbone, 126 N. Y. 192, head. 75 Ga. 297. 
 
 27 N. E. Rep. 266; Jones v. Graham, 'Brown v. Long, 1 Ired. Eq. (N. 
 
 77 N. Y. 628. C.) 193. 
 
 3 Case v. Beauregard, 101 U. S. 688.
 
 142 RIGHTS OF CREDITORS AT LARGE. § 73 
 
 law to every available extent before he can resort to 
 equity for relief." * It is not intended by this rule to 
 exclude simple contract creditors from the operation of 
 the statutes against fraudulent conveyances, they being, 
 except, perhaps, as regards statutory liens, as much pro- 
 tected, in theory of law, as creditors by judgment ; but 
 until such creditors have obtained a judgment and 
 acquired a lien, or a right to a lien upon the debtor's 
 property, they are not in a position to assert their rights 
 by a creditor's action. 3 It is observed by Brown, J., in 
 Paulsen v. Van Steenbergh, 3 that " a court of equity is 
 not the forum for litigating disputed claims, and, as a 
 general rule, will not entertain an action or afford relief 
 to a creditor until he has established his debt in a court 
 of law." 4 Courts of equity are not tribunals for the 
 collection of ordinary demands. 5 " The debt," said 
 Field, J., " must be established by some judicial proceed- 
 ing, and it must generally be shown that legal means for 
 its collection have been exhausted. 6 So the statute of 
 limitations does not begin to run against the right to main- 
 tain a creditor's action till the recovery of judgment on the 
 
 1 Importers' &Tr. Nat. Bk.v. Quack- 5 Webster v. Chirk. 35 Me. 314. 
 
 enbush, 143 N. Y. 567, 071, 38 X. E. See Dunlevy v. Tallmadge. 32 N. Y. 
 
 Rep. 728. 457 ; Bownes v. Weld, 3 Daly (N. Y.) 
 
 2 Southard v. Benner, 72 N. Y. 426; 233. 
 
 Karst v. Gane, 136 N. Y. 323, 32 N. "Public Works v. Columbia Col- 
 
 E. Rep. 1072 ; Thompson v. Van lege, 17 Wall. 530 ; Powell v. Howell, 
 
 Vechten, 27 N. Y. 568 ; Geery v. 03 N. C. 284 ; Fox v. Moyer, 54 N. Y. 
 
 Geery, 63 N. Y. 256. See Frisbey v. 128. Compare Case v. Beauregard, 
 
 Thayer, 2:. Wend. (N. Y.) 396 ; Na- 101 U. S. 688. Wisconsin Granite Co. 
 
 fcional Bank of Rondout v. Dreyfus, v. Gerrity, 144 111. 77, 33 N. E. Rep. 31; 
 
 14 Weekly Dig. (N. Y.) 160. Prentiss v. Bowden, 145 N. Y. 342, 40 
 
 »65 Bow. Pr. (N. Y.)342; Eowev. N. E. Rep. 13. A creditor's bill may 
 
 Whitney, Wi Me. 17 ; Taylor v. Bow- be filed on a judgmenl al law, after 
 
 ker, 111 U. S. 110, 4 S. C. Rep. 3 ( J7 : execution, aotwithstanding the re- 
 
 Webster v. Clark, 25 Me. 313; Griffin covery of another judgment on the 
 
 v. Nitcher, 57 Me. 270; Fleming a-, judgment. Elizabethtown Savings 
 
 Grafton. .-,| Miss. 79. Inst. v. Gerber, 34 N. J. Eq. 132, 
 
 *See Tasker v. Moss, S2 Ind. 62; note ; Bates v. Lyons, 7 Paige (N. Y.) 
 
 Baxter v. Moses, 77 Me. 465. 85.
 
 § 73 RIGHTS OF CREDITORS AT LARGE. 1 43 
 
 general claim and the return of execution unsatisfied. 1 
 When a conveyance is said to be void or voidable 
 against creditors the reference is to such parties when 
 they are clothed with judgments and executions, or such 
 other titles as the law has provided for the collection of 
 debts. 2 Judge Bronson, in Noble v. Holmes, 3 after 
 declaring that a fraudulent sale could not, under the 
 provisions of the Revised Statutes of New York, be 
 impeached by a creditor at large, added : " It must be 
 a creditor having a judgment and execution, or some other 
 process which authorized a seizure of the goods!' It 
 may be urged that, where a debtor is manifestly guilty 
 of fraudulent conduct with reference to his property, the 
 prerequisites of a judgment and execution will prove seri- 
 ous impediments to an ordinary contract creditor who 
 desires to take immediate action to reach the property 
 which the debtor is dissipating or concealing. 4 But the 
 answer to this proposition has generally been that the 
 remedy of a creditor so situated is not by creditor's bill ; 
 he must seek provisional relief by arrest or attachment, 
 or both, in a suit founded upon his contract claim. 5 A 
 creditor in this position is not, as we have seen, usually 
 entitled to interfere by injunction before judgment with 
 any contemplated alienation of property by the debtor, 
 
 1 Weaver v. Haviland, 142 N. Y. v. Davis, 148 N. Y. 260, 42 N. E. Rep. 
 
 534, 37 IS . E. Rep. 641. 661. 
 
 -Per Denio, J., in Van Heusen v. 5 See Dodcl v. Levy, 10 Mo. App. 
 
 Radcliff, 17 N. Y. 580 ; Gross v. Daly, 121. " The non-existence of a judg- 
 
 5 Daly (N. Y.) 545 ; McElwain v. Wil- ment and execution in favor of Wax- 
 
 lis, 9 Wend. (N. Y.) 561 ; Button v. ner & Co. is a radical defect. It is 
 
 Rathbone, 126 N . Y. 192, 27 N. E. not in the nature of a technical or 
 
 Rep. 266, and cases cited. formal objection, bul one going to the 
 
 3 5 Hill (N. Y.) 194; Rinchey v. essential merits of the case." In re 
 
 Stryker, 28 N. Y. 45; Lux v. Davidson, Collins, 6 Fed. Cas. 116. 
 
 56 Hun (N. Y.) 347, 9 N. Y. Supp. * Wiggins v. Armstrong, 2 Johns. 
 
 816. Ch. (N. Y.) 145; Adler v. Fenton, 24 
 
 4 See People ex rel Cauffman v. How. 411; Moran v. Dawes, Hopk. 
 
 Van Buren, 136 N. Y. 252 ; Whitney Ch. (N. Y.) 365. See § 52.
 
 144 
 
 RIGHTS OF CREDITORS AT LARGE. 
 
 73 
 
 even after instituting- suit by attachment, 1 though an 
 attempt has been made under peculiar circumstances, to 
 extend equitable relief to preserve an attachment lien 
 and hold the property in the jurisdiction of the court. 2 
 So stockholders cannot sue in the right of a corporation 
 without first trying to set the body itself in motion ; 3 and 
 a creditor or member who desires to sue in place of a 
 receiver must set forth that the receiver declines to pro- 
 ceed, 4 unless it appears that the receiver is himself one 
 of the parties to be sued. 5 
 
 To recapitulate, then, the judgment and execution are 
 usually necessary to a creditor before proceeding in 
 equity — First, to adjudicate and definitely establish the 
 leeal demand, and save the debtor harmless from inter- 
 ference at the instigation of unconscionable claimants; 
 second, to exhaust the legal remedy. 6 
 
 1 Martin v. Michael, 23 Mo. 50. See 
 Whitney v. Davis, 148 N. Y. 260, 42 
 N. E. Rep. 661. 
 
 2 People ex rel. Cauffman v. Van 
 Buven, 136 N. Y. 252, 32 N. E. Rep. 
 775. But see Whitney v. Davis, 148 
 N. Y. 260, 42 N. E. Rep. 661, affi'g 88 
 Hun (N. Y.) 168, 35 N. Y. Supp. 531. 
 
 3 Taylor v. Holmes, 127 U. S. 402, 
 8 S C. Rep. 1192; Greaves v. Gouge, 
 69 N. Y. 157 ; Moore v. Schoppert, 22 
 W. Va. 291 ; Hawes v. Oakland, 104 
 U. S. 450. 
 
 4 Fisher v. Andrews, 37 Hun (N. 
 Y.) 180 ; Wait on Insol. Corps. § 100. 
 
 5 Brinckerhoff v. Bostwick, 88 N. 
 Y. 52. 
 
 'See Merchants' National Bank v. 
 I '.huh, 13 R. I. 594. In Stone v. West- 
 ■ mi, 18 R. I. 518, 28 Atl. Rep. 662, 
 the court said : "In Merchants' Na- 
 tional I lank v. Paine, 13 R.I 592, the 
 defendant had absconded, leaving no 
 legal assets which could be attached 
 so thai a judgment at law could be 
 obtained against him, and tins court 
 
 held that as legal process was thereby 
 rendered impossible, the reason for 
 said rule failed, and the plaintiff 
 might therefore proceed at once to 
 enforce his claim in equity. In Gard- 
 ner v. Gardner, 17 R. I. 751,24 Atl. 
 Rep. 785, it was held that if the 
 debtor be dead the creditor may pro- 
 ceed in equity without first pursuing 
 his legal remedy. In the case at bar the 
 defendant bad not absconded, be was 
 not dead, nor is it even alleged that he 
 was insolvent, so as to bring the case 
 within the exception made by those 
 authorities which bold that such an 
 allegation dispenses with the necessity 
 for the issue and return of an execu- 
 tion before proceeding in equity. Sec 
 cases cited in Ginn v. Brown, 14 R. I. 
 524. Nor does the Mil allege that the 
 defendant has conveyed his property 
 to another in fraud of the judgment- 
 creditor so as to excuse him from the 
 service of execution. See Payne v. 
 Sheldon, 63 Barb. (N. Y.) 169." See 
 also National Tradesmen's Bank v.
 
 § 74 JUDGMENT CONCLUSIVE. 145 
 
 The maxim, " Lex neminem cogit ad vaua sen, inutilia 
 per agenda," has struggled for application in cases where it 
 is manifest the judgment at law will be ineffectual or 
 worthless, 1 but, though the sympathy of the profession 
 seems to favor a relaxation of the rule requiring a judg- 
 ment and execution before a proceeding by creditor's bill 
 will lie, yet, generally speaking, the absence of a judgment 
 proves fatal to such a bill. 2 A guarded statutory reform 
 might be suggested with a view to enlarge the facilities 
 of creditors to reach equitable assets. Complainants 
 holding liquidated demands, founded upon written instru- 
 ments or express contracts, might safely be given a right 
 to proceed to attack transfers, against debtors who have 
 made General assignments, or against whom unsatisfied 
 judgments rest, or who have suspended business solely 
 from lack of funds or have become notoriously insolvent. 
 
 §74. Judgment conclusive as to indebtedness. — In cases 
 where fraud is established, the creditor does not claim 
 through the debtor, but adversely to him, and by a para- 
 mount title, which overreaches and annuls the fraudulent 
 conveyance or judgment by which the debtor himself 
 would be estopped. It follows, from the principles sug- 
 gested, that a judgment obtained without fraud 3 or col- 
 lusion, and which concludes the debtor, whether rendered 
 upon default, by confession or after contestation, is, upon 
 all questions affecting the title to his property, conclusive 
 
 Wetmore, 124 N. Y. 241, 26 N. E, Hogan, 53 Me. 554; Terry v. Ander- 
 
 Rep. 548 ; Patchen v. Rofkar, 12 App. son, 95 U. S. 636. See § 83. 
 
 Div. (N. Y.) 475, 42 N. Y. Supp. 35. * See Taylor v. Bowker, 111 U. S. 
 
 1 See Lichtenberg v. Herdtfelder, 33 110, 4 S. C. Rep. 397; Baxter v. 
 
 Hun (N. Y.) 57, 60, dissenting opinion Moses, 77 Me. 476, 1 Ail. Rep. 350; 
 
 of Davis, P. J.; case affi'd, 103 N. Y. Jones v. Green, 1 Wall. 330. 
 
 302, 8 N. E. Rep. 526 ; Case v. Beaure- 3 Equity will interfere to restrain 
 
 gard, 101 U. S. 690; Hodges v. Silver the enforcement of a judgmem 
 
 Hill Mining Co., 9 Ore. 202 ; Turner grounded on a fictitious demand, 
 
 v. Adams, 46 Mo. 95; Des Brisay v. Schroer v. Pet lib L63 111. 42, 45 
 
 N. W. Rep. 
 
 IO
 
 14*5 
 
 JUDGMENT CONCLUSIVE. 
 
 74 
 
 evidence against his creditors, to establish, first, the rela- 
 tion of creditor and debtor between the parties to the re- 
 cord, and secondly, the amount of the indebtedness. 1 This 
 principle is assumed in the New York statute in relation 
 to creditors' bills, 2 and is so decided in Rogers v. Rogers. 3 
 
 1 In Whitney v. Davis, 148 N. Y. 
 261, 42 N. E. Rep. 661, Gray, J., said : 
 ' ' The principle of equitable interven- 
 tion to annul or set aside transfers of 
 a debtor's property, for being fraudu- 
 lent as to his creditors, demands for 
 its application an adjudication of the 
 fact of the debt." 
 
 2 2 R. S. 174, § 38. 
 
 s 3 Paige (N. Y.) 379. See 2 Greenl. 
 Ev. 531 ; Marsh v. Pier, 4 Rawle (Pa.) 
 288 ; Candee v. Lord, 2 N. Y. 270 ; 
 Decker v. Decker, 108 N. Y. 128, 15 
 N. E. Rep. 307 ; Mattingly v. Nye, 8 
 Wall. 373, and cases cited ; Sbaw v. 
 Manchester, 84 Iowa, 246, 50 N. W. 
 Rep. 985. Compare Teed v. Valen- 
 tine. 65 N. Y. 471. Creditors may of 
 course attack a collusive judgment 
 when it is a fraud upon them. Lewis 
 v. Rogers, 16 Pa. St. 18 ; Sidensparker 
 v. Sidensparker, 52 Me. 481 ; Edson v. 
 Cumings, 52 Mich. 52 ; Clark v. Doug- 
 lass, 62 Pa. St. 416, per Sbarswood, J. : 
 Wells v. O'Connor, 27 Hun (N. Y.) 
 428. Compare Voorhees v. Seymour, 
 26 Barb. (N. Y.) 569 ; Meeker v. Har- 
 ris. 19 Cal. 278 ; Thompson's Appeal, 
 57 Pa. St. 175 ; Clark v. Foxeroft, 6 
 Mr. 398; Uhlfelderv. Levy, 9 Cal. 607. 
 Nee especially Sh;i\v v. Dwight, 27 N. 
 Y. 244; Mandeville v. Reynolds, 68 N. 
 Y. 545 ; Bums v. Morse, 6 Paige (N. 
 Y.) 108; Whittlesey v. Delaney, 7:! X. 
 V. 571. So the alienee from whom it 
 j- soughl to recover property may 
 show thai the judgment is fraudulent 
 and collusive (Collinson v. Jackson, 14 
 Fed. Rep. 309, 8 Sawyer, 357. See 
 Freeman on Judgments, §§ 335-7), or 
 thai there is, in fact, no indebtedness 
 M'hi.k v. Anlhoin, 31 Ark. 519; King 
 
 v. Tharp, 26 Iowa, 283 ; Esty v. Long, 
 41 N. H. 103), for judgments may be 
 fraudulent as well as deeds. Carter 
 v. Bennett, 4 Fla. 283; Decker v. 
 Decker, 108 N. Y. 128. Finch, J., said : 
 " It does not alter the character of this 
 fraudulent arrangement, or enable it 
 to defy justice, that it was accom- 
 plished through the agency of a valid 
 judgment regularly enforced. That 
 often may be made an effective agency 
 in accomplishing beyond its own 
 legitimate purpose a further result of 
 fraud and dishonesty." Decker v. 
 Decker, 108 N. Y. 128, 135, 15 N. E. 
 Rep. 307. One who is in possession 
 of property of the debtor trans- 
 ferred with intent to defraud cred- 
 itors cannot defend himself on the 
 ground that the debtor might have 
 had a defense against the judg- 
 ment had he chosen to assert it 
 (Dewey v. Mover, 9 Hun [N. Y.] 479); 
 but confession of judgment by an ad- 
 ministrator cannot deprive the grantee 
 of his intestate of the defense of the 
 statute of limitation. McDowell v. 
 Goldsmith, 24 Md. 214. Then a de- 
 cree confirming a conveyance of real 
 estate from a husband to a wife in a 
 suit bet ween them, is not conclusive 
 upon the husband's assignee in bank- 
 ruptcy, seeking to annul the transfer 
 as having been made in fraud of 
 creditors. Humes v. Scruggs, 94 U. 
 S. 22. Mr. .Justice Hunt said in this 
 case : "There would be little difficulty 
 in making and sustaining fraudulent 
 transfers of property, if the parties 
 
 thereto could by a subsequent suit be- 
 tween themselves so fortify the deed 
 that no others could attack it." See
 
 § 75 T - IKN BEFORE FILING BILL. 147 
 
 The execution issued upon the judgment shows that 
 the remedy afforded at law has been pursued and of 
 course is the highest evidence of the fact. The return 
 shows whether the remedy has proved effectual or not, 
 and, because of the embarrassments which would attend 
 any other rule, the return is generally considered to be 
 conclusive. The court will not ordinarily entertain 
 inquiries as to the diligence of the officer in endeavoring 
 to find property upon which to levy. 1 A general cred- 
 itor cannot attack another creditor's judgment. 2 But the 
 fraudulent use of a valid judgment may be overturned 3 and 
 the validity of an execution maybe assailed in a creditor's 
 suit, 4 and a judgment-creditor attacking another credit- 
 or's judgment by suit assumes the burden of showing 
 that the judgment assailed was not bona fide and repre- 
 sented no debt. 5 
 
 § 75. Creditor must have lien before filing bill. — We must 
 then accept the general rule that a court of equity will not 
 usually interfere to enforce the payment of debts until the 
 creditor has exhausted all the remedies known to the 
 law to obtain satisfaction of the judgment. It is usually 
 essential, in order to give the court jurisdiction, and to 
 
 also Van Kleeck v. Miller, 19 N. B. R. ' Jones v. Green, 1 Wall. 332 ; Pier- 
 
 494, and compare Garner v. Second stoff v. Jorges, 86 Wis. 129, 56 N. 
 
 Nat. Bank, 151 U. S. 420-435, 14 S. C. W. Rep. 735. 
 
 Rep. 390. A debtor may attack a ? Frothingham v. Hodenpyl, 185 N. 
 
 judgment as having been obtained by Y. 630, 32 N. E. Rep. 240. 
 
 fraud. Richardson v. Trimble, 38 3 Decker v. Decker, 108 N. Y .135. 
 
 Hun (N. Y.) 409 ; Matter of Hill, 2 4 Prentiss v. Bowden, 145 N. Y. 348, 
 
 Con. (N. Y.) 27. We may here state 40 N. E. Rep. 13. See [reporters & Tr. 
 
 that the frauds which will sustain a Nat. Bk. v. Quackenbush, 143 X. Y. 
 
 bill to set aside a judgment or decree 567, 38 N. E. Rep. 728. 
 
 between the parties rendered by a 6 Columbus Watch Co. v. Hodenpy] 
 
 court of competent jurisdiction are 135 N. Y. 430, 32 X. E. Rep 239. 
 
 those which are extrinsic or collateral See Brooks v. Wilson. 125 X. Y. 256, 
 
 to the issues litigated. United States 26 N. E. Rep. 258; Sweel v. Con- 
 
 v. Throckmorton, 98 U. S. 61, and verse, 8« Mich. I. lit X. W. Rep. 899. 
 cases cited; Ross v. Wood, 70 N. Y. 9.
 
 148 LIEN BEFORE FILING BILL. § 75 
 
 reach equitable assets, that an execution should have 
 been issued upon the judgment, and returned unsatisfied, 
 or, if an action is brought in aid of an execution at law, 
 that it be outstanding. The commencement of the action 
 will then give the creditor a specific lien J except as 
 regards chattels subject to be taken on execution. 3 The 
 rule that the legal remedy must be exhausted by the judg- 
 ment-creditor before relief can be solicited to reach property 
 not subject to the lien of the judgment is an ancient one. 
 It existed in England, and was recognized by the Court 
 of Chancery in New York, before the provisions made 
 by the Revised Statutes 3 of that State, which require 
 that an execution be issued and returned unsatisfied in 
 whole or in part, before a bill can be filed to compel a 
 discovery of property and to prevent a transfer of it. 
 " This statute," says Chancellor Walworth, in Child v. 
 Brace, 4 " is only declaratory of a principle which had 
 before been adopted in this court." 5 Hence the cred- 
 itors of an insolvent partnership must acquire a legal or 
 an equitable lien upon the property of the firm to author- 
 ize them to invoke the equitable powers of the court in its 
 
 1 Adsit v. Butler, 87 N. Y. 587 ; be- or defeated by the death of the debtor 
 
 low, 23 Hun (N. Y.) 45 ; Crippen v. before judgment Brown v. Nichols, 
 
 Hudson, 13 N. Y. 161 ; Beck v. Bur- 42 N. Y. 26." 
 
 dett, 1 Paige (N. Y.) 305; Dunlevy v. 2 First National Bank v. Shuler, 
 
 Tallmadge, 32 N. Y. 461. In First 153 N. Y. 172. 
 
 National Bank v. Shuler, 153 N. Y. 3 2 N. Y. R. S. 174, §38. 
 
 171, the court says : " The rule is well 4 4 Paige (N. Y.) 309. 
 
 settled in this state that the plaintiff Sec Dunlevy v. Tallmadge, 32 N. 
 
 in a creditor's action acquires, by the Y. 460 ; Adsit v. Butler, 87 N Y. 587 ; 
 
 commencement of the suit, a hen Wiggins v. Armstrong, 2 Johns. Ch. 
 
 upon the choses in action and equit- (N. Y.) 144 ; Hendricks v. Robinson, 2 
 
 able assets of the debtor, which en- Johns Ch. (N. Y. ) 283 ; Brinkerboff v. 
 
 titles him, in the successful evenl of Brown, 4 Johns. Ch. (N. Y.) 671; 
 
 the action, to priority of paymenl Spader v. Davis, 5 Johns. Ch. (N. Y.) 
 
 thereout in preference to other credit- 280; 8. con error, 20 Johns. (N. Y.) 
 
 ore irrespective of the priority of the 554; Willetts v. Vandenburgh, 34 
 
 respective judgments (Edmeston v. Barb. (N.Y.) 424; Crippen v. Hudson, 
 
 Lyde, 1 Pai. 637; Corning v. White, 2 13 N. Y. 161; Brooks v. Stone, 19 How. 
 
 Id. 567), and this lien is not displaced Pr. (N. Y.) 396.
 
 §7^ JUDGMENT SUFFICIENT. i.|>, 
 
 administration. 1 Nor does the fact that the debtor is an 
 insolvent corporation, and has alienated its property in 
 contravention of the statute, authorize a resort to equity 
 until the remedy at law has been exhausted by judgment 
 and execution returned unsatisfied. 2 But where in such 
 case the property is in the hands of the receiver, against 
 whom no execution can be levied, a creditor's bill will lie 
 without such an execution. 3 In general it may be said 
 that while the mere fact that the execution will probably 
 prove worthless is not enough to warrant the bring-ine of 
 a creditor's action without a levy and a return nulla bona, 
 it is different where such levy is impossible by provision 
 of law. 4 
 
 § 76. Judgment sufficient. — An ordinary money-judg- 
 ment rendered in the State in which the debtor resides 
 and the concealed property is located, is manifestly a 
 proper foundation for a creditor's suit. A bill of this 
 character may also be filed " to aid in the collection of 
 money decreed in chancery." 5 "I have no doubt, how- 
 ever," said Chancellor Walworth, " that a creditor, by a 
 decree in chancery, upon the return of his execution 
 unsatisfied, is entitled to the same relief, against the 
 equitable rights and property of his debtor, as a creditor 
 by a judgment at law." 6 A justice's judgment will 
 suffice/ especially if docketed in a court of record. 8 And 
 
 1 Crippen v. Hudson, 13 N. Y., 161; Le Fevre v. Phillips, 81 Hun (N. Y.) 
 Dunlevy v. Tallmadge, 32 N. Y. 457. 232. 30 N. Y. Supp. 709. 
 
 See Greenwood v. Brodhead, 8 Barb. 5 Farnsworth v. Strasler, 12 111. 
 
 (N. Y. ) 593; Young v. Frier, 9 N. J. 485; Weigtinan v. Hatch, 17 111.281. 
 
 Eq. 465. 6 Clarkson v. De Peyster, 3 Paige 
 
 2 Adee v. Bigler, 81 N. Y. 349. (N. Y. ) 320. 
 
 3 Blair v. Illinois Steel Co., 159 111. ' Bailey v. Burton, 8 Wend. (N. Y.) 
 350, 42 N. E. Rep. 895. 339; Newdigate v. Jacobs, 9 Dana 
 
 4 National Tradesmen's Bank v. (Ky.) 18 ; Heiatt v. Barnes, 5 Dana 
 Wetmore, 124 N. Y. 241, 26 N. E. Rep. (Ky.) 220; Ballentine v. Beall, 4 111. 204. 
 548; Patchenv. Rofkar, 12 App. Div. * See Crippen v. Hudson, 13 N. Y. 
 (N. Y.) 475, 42 N. Y. Supp. 35. See 161.
 
 150 JUDGMENT INSUFFICIENT. §77 
 
 a judgment by confession, even though defective in form 
 and particularity of statement, authorizes the creditor to 
 impeach a fraudulent transfer. 1 Judgment entered upon 
 an offer will stand, 2 and will not be set aside at the suit 
 of another creditor because this method was adopted for 
 the purpose of avoiding the statutory form of confession 
 of judgment. 3 So a demand classified and allowed by a 
 probate court will suffice. 4 Under a judgment against 
 joint debtors only part of whom were served with process, 
 a creditor's action may be prosecuted to reach joint prop- 
 erty, but not the separate property of those not served 
 with process in the original suit. 5 Supplementary pro- 
 ceedings may be taken on a judgment so recovered to 
 reach joint property. 6 
 
 § 77. Judgment insufficient.— It seems clear in New York, 
 at least, that a creditor's action cannot be founded upon 
 a judgment recovered in a justice's court where the exe- 
 cution had only been issued to and returned by the 
 justice. 7 It should be docketed in, and made a judg- 
 ment of, a court of record. It then becomes as much 
 entitled to the aid of a court of equity as though originally 
 recovered in a court of record. 8 So supplementary pro- 
 
 1 Neusbaum v. Keim, 24 N. Y. 325. 6 Billhofer v. Heubach, 15 Abb. Pr. 
 Compare Harrison v. Gibbons, 71 N. (N. Y.) 143. See Produce Bank v. 
 Y. 58. If a creditor attacks a con- Morton, 67 N. Y. 199. Compare 
 fession of judgment as being fraudu- Howard v. Sheldon, 11 Paige (N. Y.) 
 lent against him he must plead the 558; Commercial Bank of Lake Erie 
 grounds of the objection. A general v. Meach, 7 Paige (N. Y.) 448. 
 averment will not suffice. Meeker v. 6 Perkins v. Kendall, 3 Civ. Proc. 
 Harris, 19 Gal. 278. (X. Y.) 240. 
 
 2 Columbus Watch Co. v. Hoden- ' Crippen v. Hudson, 13 N. Y. 161. 
 pyl, 135 N. Y. 430, 32 N. E. Rep. See Dix v. Briggs, 9 Paige (N. Y.) 595; 
 239 ; Trier v. Herman, 115 N. Y. 163, Coe v. Whitbeck, 11 Paige (N. Y.) 42 ; 
 21 X. E. Rep. 1034. Henderson v. Brooks, 3 T. & C. (N. 
 
 * Trier v. Herman, 115 N. Y. 163, Y.) 445. 
 
 21 N. E. Rep. 1034. B Bailey v. Burton, 8 Wend. (N. 
 
 *Wrigh1 v. Campbell, 27 Ark. 637. Y.) 339 ; Newdigate v. Jacobs,9Dana 
 
 Compare Catchings v. Manlove, 39 (Ky.)18; Heiatt v. Barnes, 5Dana(Ky.) 
 
 Miss. 671. 220: Ballentine v. Beall, 4 111. 204.
 
 §77 
 
 JUDGMENT INSUIFTCIEXT. 
 
 ceedings\ or a creditor's bill cannot be founded upon a 
 judgment that did not bind all of the debtor's property. 1 
 Again, a judgment in an attachment suit, where the 
 defendant has not been brought into court so as to make 
 it a personal judgment, is not evidence of the debt in 
 another suit founded upon that record ; 2 and a creditor's 
 bill cannot be brought upon a judgment barred by the 
 statute of limitations, 3 or upon a claim the consideration 
 of which is illegal. 4 And an action based upon a judg- 
 ment rendered against executors in their representative 
 capacity, is not maintainable to set aside, as fraudulent as 
 against creditors, a conveyance of real estate made by a 
 decedent. 5 This latter combination of facts might well 
 in some instances result in a seeming denial of justice. 
 The court said that if the facts recited in the complaint 
 were true, it was the duty of the executors to reclaim the 
 real estate. Earl, J., observed: "The fact that the 
 fraudulent grantee is one of the executors furnishes no 
 
 1 Importers & Traders' Nat. Bank 
 v. Quackenbush 143 N. Y. 567, 38 N. 
 E. Rep. 728 ; Thomas v. Merchants' 
 Bank, 9 Paige (N. Y.) 215; Rocky 
 Mountain Nat. Bank v. Bliss, 89 N. 
 Y. 338. 
 
 3 Manchester v. McKee, 9 111. 520. 
 "It is apparent that the plaintiff 
 could in no way secure a judgment 
 in this State against the assignor 
 for the amount of his indebtedness 
 before commencing this action. The 
 assignor was not within the juris- 
 diction of the courts in this State, 
 and no personal service of sum- 
 mons could be made upon him No 
 service could be made by publication 
 of the summons so as to procure a 
 personal judgment against him, in- 
 asmuch as no attachment could be 
 levied upon any property of his in 
 this State after the making of the 
 assignment. Code Civ. Proc. § 1217; 
 
 Capital City Bank v. Parent, 134 N. 
 Y. 527, 31 N. E. Rep. 976. The money 
 in the hands of the assignee could qoI 
 be attached. McAllaster v. Bailey, 
 127 N. Y. 583, 28 N. E. Rep. 591 ; 
 Patchen v. Rofkar, 12 App. Div. (X. 
 Y.) 477, 42 N. Y. Supp. 35." 
 
 3 Fox v. Wallace, 31 Miss. 660. 
 
 "•Alexander v. Gould, 1 Mass. 165. 
 See Brooks v. Wilson, 125 N. Y. 262, 
 26 N. E. Rep. 258. 
 
 5 Litchtenberg v. Herdtfelder, 103 
 N. Y. 302, 8 N E. Rep. 526. In New 
 York the personal representative must 
 sue to annul a fraudulent transfer 
 made by the decedenl (National Bank 
 v. Levy, 127 N. Y. 552, 28 N. E. Rep. 
 592 ; Barton v. Hosner, 24 Hun (N.Y.) 
 467, Laws of 1858, ch. 314; butthe 
 creditor may bring action where the 
 personal representative refuses. Nat- 
 ional Bank v. Levy, L27 X. Y. 552, 
 28 N. E. Rep. 592.
 
 15- FOREIGN JUDGMENTS. §78 
 
 insurmountable obstacle. If she should refuse to restore the 
 lands to the estate, she could be removed from her office 
 of executrix, and then the remaining two executors could, 
 under the act of 1858, disaffirm the conveyances of the real 
 estate and bring an action to set them aside. Or the two 
 executors could commence the action making 1 the execu- 
 trix a defendant, and in such an action obtain for the 
 estate the relief demanded. If the two defendants 
 refused to commence the action upon the application of 
 the creditors or some of them, they could be compelled to 
 commence it by an order of the surrogate." Parties 
 experienced in suits instituted to annul fraudulent con- 
 veyances will readily appreciate the perfunctory manner 
 in which these executors would be likely to prosecute 
 their associate. 
 
 § 78. Foreign judgments. — Usually a foreign judgment 
 will not suffice as the foundation of a creditor's bill. 1 In 
 Buchanan v. Marsh, 2 which was an action in the courts of 
 the State of Iowa on a judgment rendered in Canada, an 
 injunction was asked restraining the defendants from alien- 
 ating or encumbering their real estate until the rights of 
 the parties should be determined at law. Wright, C. J., 
 said : " Plaintiffs are not judgment-creditors. For the 
 purpose of the present inquiry, their action is like any 
 ordinary one upon a note, account, or any simple contract, 
 or evidence of indebtedness. They have a foreign judg- 
 ment ; but until it becomes a judgment in our courts, they 
 are no more than creditors at large, and until they obtain 
 the recognition of their claim by the adjudication of our 
 State tribunals, they have no other or different rights as to 
 the property of their debtor than if their demand was 
 
 Patchen v. Rofkar, 12 A.pp. Div. Mountain Nat. Bank v. Bliss, 89 N. Y. 
 (X. Y.i 175, 12 N. 5T.Supp.35; Rocky 338. 
 
 2 17 Iowa. 494.
 
 § 7§ I ' > REIGN JUDGMENTS. I 53 
 
 indorsed by a less solemn or conclusive proceeding or 
 instrument. For, however effectual such judgment may 
 be, or whatever the faith and credit to which it may be 
 entitled, it is very certain that it cannot be enforced here 
 until its validity is recognized and passed upon by the 
 judgment of our courts. This being so upon common 
 law principles, we know of no principle upon which plain- 
 tiffs were entitled to this injunction. The rule is, as far 
 as we know, without exception, that the creditor must 
 have completed his title at law, by judgment (if not by 
 execution) before he can question the disposition of the 
 debtor's property." In Rocky Mountain National Hank 
 v. Bliss, 1 the court say : "In requiring- the creditor to 
 exhaust his legal remedies against the corporation, befon • 
 resorting to the personal liability of the stockholders, the 
 statute could not have contemplated that the recovery of 
 a judgment and issue of an execution against the com- 
 pany in any State of the Union should be a compliance 
 with the condition. The legal remedies afforded by the 
 courts of this State, where the corporation was created 
 and is domiciled, are those which the legislature must 
 be deemed to have intended." The weight of authority 
 sustains this view.~ On the other hand, upon a judg- 
 ment recovered in Pennsylvania, an attachment was issued 
 in New Jersey, and the lien thereby created was held to 
 be sufficient to enable the creditor to attack a fraudulent 
 transfer. 3 A^ain, in Wilkinson v. Yale, 4 a creditor's bill 
 was maintained in the United States Circuit Court, 
 
 1 89 N. Y. 342. Eq. 430 ; Crim v. Walker, 79 Mo, 335 ; 
 
 •See McCartney v. Bostwick, 31 Brown v. Campbell, 100 Cal. 03.""), 35 
 
 Barb. (N. Y.) 390, Overruled 32 N. Y. Pac. Rep. 433. 
 
 53; Claflin v. McDerniott. 12 Fed. 3 Smith v. Muirheid, 34 X. -I. Eq. I. 
 
 Rep. 375 ; Davis v. Bruns, 23 Hun(N. See Watkins v. Wortnian, 1!) W. Va. 
 
 T.) 648; Berryman v. Sullivan, 21 79; Chicago Bridge Co. v. An.ulo- 
 
 Miss. 65; Tarbell v. Griggs, 3 Paige Amer. Pack. Co., 46 Fed. Rep. >l 
 
 (N. Y.) 207; Farned v. Harris, 19 4 6 McLean 16. See Bullitt v. Tay- 
 
 Miss. 366 ; Davis v. Dean, 26 N. J. lor, 34 Miss. 708.
 
 154 
 
 CREDITORS OF A DECEDENT. 
 
 §79 
 
 founded upon a judgment of a court of the State in which 
 the Federal court was sitting. 1 Still the general rule is 
 that a foreign judgment ranks as a simple contract debt ; 
 it does not have the force and operation of a domestic 
 judgment except for the purposes of evidence, beyond the 
 jurisdiction in which it is obtained. 2 
 
 § 79. Creditors of a decedent— The question of the neces- 
 sitv of a judgment as the foundation of a creditor's pro- 
 ceedings, in cases where the debtor is dead, has created 
 much dissension in the courts. Estes v. Wilcox, 3 an 
 important case in the New York Court of Appeals, is to 
 the effect that a creditor without judgment and execution 
 returned, cannot maintain an action to enforce a resulting 
 trust under the statutes of uses and trusts, in lands pur- 
 chased and paid for by the debtor, and deeded to another, 
 although the debtor died insolvent. It was held that 
 these facts did not dispense with the observance of the 
 
 'Compare, however, Tompkins v. 
 Purcell, 12 Hun (N. T.) 664 ; Tarbell 
 v. Griggs, 3 Paige Ch. (N. Y.) 208; 
 Steere v. Hoagland, 39 111. 264 ; Bul- 
 litt v. Taylor, 34 Miss. 708, 743 ; Brown 
 v. Bates, 10 Ala. 440; Goodyear Vul- 
 canite Co. v. Frisselle, 22 Hun (N. Y.) 
 174; Crim v. Walker, 79 Mo. 335; 
 Claflin v. McDermott, 12 Fed. Rep. 
 375. Bui see to the effect that a judg 
 ment in a United States courl is to he 
 considered a domestic judgment of 
 the State within which it is rendered. 
 Firsl Nat. Ilk. v. Sloman,42 Neb. 350, 
 en X. W. Rep. 589 ; Ballin \ Loeb,78 
 Wis. 104, 17 N. W. Rep. 516; Embry 
 v. Palmer, L07 U. 8. 3, -J S. < '. Rep, 
 25 ; A. lams v. Way, 33 Conn. 119. In 
 Johnson v. Powers, 139 i'. S. 156, 159, 
 tin- courl said : " A judgment re- 
 covered against tin- administrator of 
 ;i deceased person in one State is no 
 evidence of debt, in a subsequent suit 
 by tin- same plaint ill' in anol her state. 
 
 either against an administrator, 
 whether the same or a different per- 
 son, appointed there, or against any 
 other person having assets of the 
 deceased. Aspden v. Nixon, 4 How. 
 KIT: Stacy v. Thrasher, 6 How. -11 ; 
 McLean v. Meek, 18 How. 16 : Low 
 v. Bartlett, 8 Allen (Mass.) 259." As 
 to when a foreign judgment is only 
 prima fade evidence in this country 
 and for an exhaustive review of. the 
 authorities, see Bilton v. Guyot, 159 
 U. S. li:'>, and cases cited. To im- 
 peach a foreign judgment, the fraud 
 must be distinctly alleged, Ritchie \. 
 McMullen, 159 V. S. 342; White \. 
 Hall. 12 Ves. 321. 
 
 'McElmoyle v. Cohen, 13 Pet. 312. 
 An administrator appointed in one 
 State cannot sue in another state, 
 Johnson v. Powers. 139 U. S. 156, 11 
 S. ('. Rep. 525. 
 
 3 67 N. Y. 264.
 
 §79 CREDITORS OP A DECEDENT. [55 
 
 general rule that a debt must be fixed and ascertained by 
 judgment, and the legal remedies exhausted. 1 It is con- 
 tended that the reason of the rule that a creditor's debt 
 must be ascertained by judgment before proceeding in 
 equity, does not necessarily fail by the death of the debtor 
 before judgment recovered upon the debt. The creditor 
 may prosecute the claim to judgment against the personal 
 representatives of the debtor, and although it will not be 
 conclusive against his heirs or his grantees by title 
 acquired before his death, it would conclude the creditor 
 as to the amount of his claim. 2 But we cannot discover 
 that the judgment against the personal representatives 
 would be of much worth to the creditor. 3 This case cer- 
 tainly extended the requirement to an extreme limit. 4 
 Recent cases uphold the rule in all its strictness where the 
 action is brought exclusively for the benefit of the com- 
 plainant. 5 But by recent legislation creditors can bring 
 without judgment or execution an action to set aside a 
 fraudulent conveyance, if it is brought on behalf of all 
 parties interested. 6 In a number of States the principle is 
 asserted that no proof of the recovery of judgment is 
 necessary where the debtor is dead, 7 as the judgment 
 
 'See Allyn v. Thurston, 53 N. Y. 5 Prentiss v. Bowden, 145 N. Y. 
 
 622; Fox v. Mover, 54 N, Y. 129; 342, 40 N. E. Rep. 13 ; ch. 487, Laws 
 
 Shaw v. Dvvight. 27 N. Y. 249 : North of 1889. 
 
 American Fire Ins. Co. v. Graham, 5 6 See§112. See N. Y. Lawsl889,ch 
 
 Sandf. (N. Y.) 200 ; Jones v. Green, 1 487 ; Brown v. Brown, 83 Hun (N. 5 . I 
 
 Wall. 332, per Justice Field ; Chitten- 162, 31 N. Y. Supp. 650. See Nat. 
 
 den v. Brewster, 2 Wall. 196. See Tradesmen's Bank v. Wetmore, 124 
 
 also § 73. N. Y. 241, 26 X. E. Rep. 2 18. 
 
 ' 2 Estes v. "Wilcox, 67 N. Y. 266; 7 Johnson v. Jones, 79 Ind. 141; 
 
 Burnett v. Gould, 27 Hun(N. Y.) 366; Kipper v. Glancey, 2 Blackf. (Ind.) 
 
 followed in Ohm v. Superior Court, 356; O'Brien v. Coulter, 2 Blackf. 
 
 85Cal. 548, 26 Pac. Rep. 244. See (Ind. ) 421 ; Spencer v. Armstrong, 12 
 
 O'Connor v. Boylan, 49 Mich. 209, 13 Heisk. (Tenn.) 707; Love v. Mikals, 
 
 N. W. Rep. 519; Fletcher v. Holmes, 11 Ind. 227; Spicer v. A.yers, 2 T. & 
 
 40 Me. 364. C. (N. Y.) 628 : Reeder v. Speake, I S. 
 
 3 Lichtenberg v. Herdtfelder, 103 C. 293 ; Haston v. Castner, 29 N. J. 
 
 N. Y. 302. Eq. 536; Offutt v. King, 1 MacA. 
 
 4 See Merchants' Nat. Rank v. (D. C.) 314; Fowler's Appeal, 87 Pa. 
 
 Paine, 13 R. I. 594. St. 449 ; Shurts v. Howell, 30 N. J.
 
 156 JUDGMENTS IN EQUITABLE ACTIONS. § 80 
 
 would be useless and unmeaning. 1 In Hagan v. 
 Walker,'' Mr. Justice Curtis, a very learned and able 
 jurist, held that a simple creditor might maintain a suit to 
 remove a covinous conveyance and reach assets, against 
 the administrator and the fraudulent alienee of a deceased 
 debtor. The court was of opinion that such a case was 
 not to be treated as an application by a judgment-cred 
 itor for the exercise of the ancillary jurisdiction of the 
 court to aid him in executing legal process, but came 
 under the head of original jurisdiction in equity. 3 The 
 authorities upon this subject cannot be reconciled. The 
 best reasoning would seem to be with the cases holding 
 that no judgment need be recovered against the deced- 
 ent's estate, and in favor of allowing the creditor both 
 to establish his claim, and to discover assets to be applied 
 toward its payment, in the same action. The practice of 
 allowing executors and administrators to prosecute actions 
 to annul fraudulent transfers, in the interest and right of 
 creditors, will be noticed presently. Where the personal 
 representatives sue, the necessity for judgment and exe- 
 cution returned unsatisfied is superseded. 4 
 
 S 80. Rule as to judgments in equitable actions. — The 
 remedy, it seems, must also be exhausted where the judg- 
 ment proceeded upon was rendered in an equity suit. 
 Thus in Geery v. Geery, 5 which was an action brought to 
 
 Eq. 418; Phelps v. Piatt, 50 Barb. (N. 10(5; Bqy v. Cook, 31 111. 336; Merry 
 
 Y.) 430: Steere v. Hoagland, 39 111. v. Fremon, 44 Mo. 518; Snodgrass v. 
 
 264 ; Lyons v. Murray, 95 Mo. 23, 8 S. Andrews, 30 Miss. 472. Compare Hills 
 
 W. Rep. 170. v. Sherwood, 48 Cal. 386. 
 
 1 Piatt v. Mead, 9 Fed. Rep. 9G ; 4 Barton v. Hosner, 24 Hun (N. Y.) 
 
 Loomis v. Tifft, 16 Barb. (N. Y.) 541, 471. Compare National Bank v. Levy, 
 
 (contra, Estee v. Wilcox, 67 N. Y. 127 N. Y. 552, 38 N. E. Rep. 592; 
 
 264); Dora 11 \ . Simpson, 1 Ves. 651 ; Lichtenberg v. Herdtfelder, 103 N. Y. 
 
 A-lsagerv. Rowley, 6 Ves. 749 ; Wright 302, 8 N. E. Rep. 526. See§§ 112,113. 
 
 v. Campbell, 27 Ark. 637. » 63 N. V. 252; overruling White v. 
 
 *14How.32 See Merchants', etc. Geraerdt, 1 Bdw. Ch. (N. Y.) 336. See 
 
 Trans. Co. v. Borland, 53 N. J. Eq. Sullivan v. Miller, 106 N. Y. 641, 13 
 
 282, 31 Atl. Rep. 272. N. E. Rep. 772. 
 
 'See Green v. Creighton, 23 How.
 
 § 8o JUDGMENTS F\ EQUITABLE ACTIONS. 157 
 
 set aside conveyances of real estate alleged to have 
 been made by the defendant, through other persons, to 
 his wife, in fraud of creditors, there was no proof of the 
 docketing of a judgment, and of execution returned 
 unsatisfied, and the point was taken that the ordinarj 
 remedy usually available to creditors had not been 
 exhausted. The creditor sought to obviate this objection 
 by urging that the rule did not apply where the judgment 
 sought to be collected was rendered in an equitable action. 
 It appeared that the foundation of the complainant's 
 claim was a judgment rendered upon a partnership 
 accounting, but the judgment had not been docketed, nor 
 had any execution been issued upon it. Earl, J., said : 
 "I can perceive no reason for a distinction. A suit in 
 equity to enforce satisfaction of a judgment should not 
 be allowed so long as there is a more simple and obvious 
 remedy. The statute law gives a remedy by execution, 
 and that remedy, upon every reason of public policy and 
 convenience, should be exhausted before a new suit 
 should be allowed to be maintained." ' Then Johnson, J., 
 observed, in Crippen v. Hudson, ~ that "the court of 
 chancery required executions to be returned unsatisfied, 
 when issued on its own decrees, before it would entertain 
 creditors' bills founded upon them." 3 There is, however. 
 a rule running through some of the cases to the general 
 effect that, where the claim asserted is purely equitable, 
 and such as a court of equity will take cognizance of in 
 the first instance, equity will at the same time go to the 
 extent of inquiring into the matter of obstructions which 
 have been placed in the way of enforcing the demand. 1 
 
 •See supra, %% 76, 77. Clarkson v. myer v. Crawford, G Paige (N. Y.) 
 
 De Peyster, 3 Paige (N. Y.) 320 : S. p., 254. 
 
 Adsit v. Butler, 87 N. Y. 585-r»s!t. * Halbert v. Grant, -1 Mon. (Ky.) 
 
 2 13 N. Y. 161. 583. Compare Shea v. Knew ill'' & 
 
 3 See North Am. Fire Ins. Co. v. Kentucky R. R. Co.. <i Baxter (Tenn. ) 
 Graham, 5 Sandf . (N. Y.) 198 ; Speigle- 277.
 
 158 SPECIFIC LIEN BY ATTACHMENT. § 8l 
 
 For instance, where a surety has paid money for a princi- 
 pal, chancery has jurisdiction of a suit for its recovery, 
 and the complainant ma)' add a prayer seeking to annul a 
 fraudulent conveyance that stands in the way of a settle- 
 ment or is calculated to defeat or embarrass the remedial 
 action of the court. 1 
 
 § 81. Specific lien by attachment. — In cases where the 
 sheriff takes property upon attachment, which is of a 
 nature subject to seizure and sale, but which has been 
 fraudulently transferred, it seems rather clearly estab- 
 lished that the plaintiff, after the service of the attach- 
 ment, is not considered a mere creditor at large, but, 
 according to some of the authorities, one having a specific 
 lien upon the goods attached, and that the sheriff has a 
 like lien, and the right to show, as a defense to an action 
 for taking the property, or in support of his possession, 
 that the title of the party claiming it from the officer is 
 fraudulent as against the attaching creditor. 2 Hence it 
 was held, in an action brought by a general assignee for 
 the benefit of creditors, to recover goods seized by a 
 sheriff on a warrant of attachment issued against the 
 assignor, that it was permissible for the sheriff to show 
 that the assignment was fraudulent and void as against 
 the attaching creditors. 3 There is some confusion, how- 
 
 1 Waller v. Todd, 3 Dana (Ky.) 508. App. 704, 4 C. C. A. 205, 54 Fed. 
 
 Compare Smith v. Rumsey, 33 Mich. \lf\>. 93. 
 
 184; especially Swan v. Smith, 57 s Carr \. Van Boesen, 26 Hun (N. 
 
 Miss. 548. Butsee§85. 5 1 316; Rinchey v. Stryker, 28 N. Y. 
 
 Gross v. Daly, 5 Daly (N. Y.i 542 ; 15; Eess v. Hess. 11TN Y. 308, 22 N. E. 
 
 Rinchey v. Stryker, 28 N. Y. 4"), 26 Rep. i»o(i. In the hitter case the court 
 
 How. Pr. ?•"> ; Noble v. I loliin's. ."i Hill says: '-Goods and chattels fraudu- 
 
 (N Y.) 194; Van Etten v. Burst, 6 lently assigned by a debtor, to hinder, 
 
 IlilhN. F.)311; Sheaf e v. Sheafe, 40 delay and defraud creditors, are at- 
 
 X. I! 516; Webster v. Lawrence, 47 tachable in the bands of his volun- 
 
 IIuiiiN. 5f.) 565 ; Lux v. Davidson, 56 tary assignee al the suit of ;i creditor 
 
 Bun(N. r.)345,9N. Y. Supp. 816; defrauded bj the assignment. Rin- 
 
 Waples Platter Co. v. how. 10 U. S. chej v. Stryker, 28 N. Y.45; Frosl v.
 
 § 8l SPECIFIC LIEN BY ATTACHMENT. 1 59 
 
 ever, in the authorities on the question of the right of an 
 attaching creditor to attack fraudulent transfers. The 
 Supreme Court of Nebraska and the courts of some other 
 States deny such right in a variety of instances. 1 The 
 Nebraska case is rested upon the authority of Brooks v. 
 Stone, 2 which proceeds on the theory that the creditor's 
 remedy at law is not exhausted, his claim is not definitely 
 established, and perhaps he will never succeed in getting 
 a judgment. 3 So garnishment process does not create a 
 sufficient lien to uphold a creditor's bill. 4 In New York, 
 a State in which the authorities relating to different 
 phases of our general subject are burdened with sub- 
 tle distinctions, and show apparent conflicts, it is said 
 that an attaching creditor could not maintain an inde- 
 pendent action in the nature of a creditor's bill to set 
 aside a fraudulent transfer of a chose in action. 5 This 
 case rested upon the theory that the attachment, owing 
 to the nature of the property, created no lien ; but where 
 a lien is in fact acquired, the rule, as already stated, may be 
 different, 6 as for example, when the attaching creditor or 
 
 Mott, 34 id. 253. The rule which pre- nent v. Battey, 18 Kan. 324 ; Martin 
 
 vents the levy of an execution, under v. Michael, 23 Mo. 50 ; Greenleaf v. 
 
 similar circumstances, upon equitable Mumford, 19 Abb. Pr. (N. Y.) 469 
 
 assets or choses in action, proceeds Mills v. Block, 30 Barb. (N. Y.) 549 
 
 upon peculiar grounds, not applicable Melville v. Brown, 16 N. J. Law, 364 
 
 to chattels, of which there can be a McMinn v. Whelan, 27 Cal. 300. 
 
 manual tradition. Thurber v.Blanck, - 19 How Pr. (N. Y.) 395 : see Dun- 
 
 50 N. Y. 80; Anthony v. Wood, 96 levy v. Tallmadge, 82 X. Y. 157. 
 
 id. 180. If, therefore, the present ac- s Compare Jones v. Green, 1 Wall, 
 
 tion had been continued against the 331. See § 73. 
 
 sheriff, there can be no doubt that he 4 Bigelow v. Andress, :i! Ml. 
 
 could have defended the original tak- 5 Thurber v. Blanck, 50 X. Y. 80. 
 
 ing by showing that he took the See Whitney v. Davis, 14S N. Y. 260, 
 
 goods "under a valid attachment 42 N. E. Rep. 661, explaining People 
 
 against Hirschhorn & Co., and that ex rel. Cauffman v. Van Buren, 136 
 
 the assignment to the plaintiff was N. V. 252, 32 N. E. Rep. 775 
 
 fraudulent as to the plaintiff in the 'Carr v. Van Boesen, 26 linn (N. 
 
 attachment suit." Compare Bates v. Y.) 316 ; Rinchey v. Stryker, 28 V Y. 
 
 Plonsky, 28 Hun (N. Y.) 112. 45. Compare Frost v. Moll. 3 1 N. Y. 
 
 1 Weil v. Lankins, 3 Neb. 384 ; Ten- 255 ; Smith v. Longmire, 24 Hun (N.
 
 i6o 
 
 SPECIFC LIEN BY ATTACHMENT. 
 
 §8l 
 
 the sheriff is a defendant, at the suit of the fraudulent 
 alienee, and relief will be, in certain instances, extended, 
 both in that State and in sister States, for the protection 
 and vindication of the lien. 1 The words of the statute 
 usually make a judgment an absolute prerequisite to 
 the creditor's bill. While it is admitted that a creditor 
 may attach assets fraudulently transferred, it remains 
 doubtful whether he can use the attachment lien for any 
 other than purely defensive purposes, at least until he 
 has obtained judgment. But where there is danger that 
 assets fraudulently transferred which have been attached 
 will be taken from the jurisdiction of the court, an injunc- 
 tion will be granted to the attaching creditor. 2 In Whit- 
 ney v. Davis, 3 the case of People ex rel. Cauffman v. Van 
 Buren, 4 is explained and certainly not extended. 5 In Bowe 
 v. Arnold 6 the courts of New York held that the plaintiffs, 
 in an action instituted by attachment, could not join with 
 the sheriff in a suit against an assignee claiming the prop- 
 erty under an assignment which it was sought to set aside 
 in the action as fraudulent. It was conceded that such 
 
 Y.) 257; Hall v. Stryker, 27 N. Y. 
 596 ; Castle v. Lewis, 78 N. Y. 131 ; 
 Ocean Nat. Bank v. Olcott, 46 N. Y. 
 12 ; Deutsch v. Reilly, 57 How. Pr. 
 (N. V.) 75 ; Whitney v. Davis, 148 N. 
 Y. 260, 42 N. E. Rep. 661. 
 
 1 Heyneinan v. Dannenberg, 6 Cal. 
 378 ; Scales v. Scott, 13 Cal. 76; Joseph 
 v. McGill, 52 Iowa, 128: Heye v. 
 Bolles, 33 How. Pr. (N. Y.) 266 ; Mer- 
 riam v. Sewall, 8 Cray (Mass.) 316; 
 Falconer v. Freeman, I Saudi'. Cli. 
 i X. Y.i 565 : Stone v. Anderson, 26 N. 
 II. 506 ; Dodge v. Griswold, 8 N. H. 
 425; Hunt v. Field, 9 N. J. Eq. 36; 
 Williams v. Michenor, 11 X. .) . Eq. 
 520: shear.- v. Sheafe, i<» X. ii. 516: 
 Whit lies v. Davis. IIS X. Y. 260, 42 
 X. E. Rep. 661, 
 
 2 People ex rel. Cauffman v. Van 
 Buren, 136 N. Y. 252, 32 N. E. Rep. 775. 
 
 3 148 N. Y. 256, 42 N. E. Rep. 661. 
 
 4 136 X. Y. 252, 32 N. E. Rep. 775. 
 
 6 "Where the attachment is issued 
 against property of nonresident 
 debtors, the righl maj now be en- 
 forced in New York by an act ion in 
 aid of the attachment. Chap. 504, X. 
 Y. Laws 1889; Hardin- v. Elliott, 91 
 Hun (N. Y.) 506, 36 N. Y. Supp, 648. 
 Tn New .lersev an affirmative action 
 may lie brought by a creditor having 
 
 a lien. Cocks v. Varnev, 45 X. .1. Eq. 
 72, 17 Atl. Rep. 10S. See Taylor v. 
 Branscombe, 71 Iowa. 534, 38 X. W. 
 Rep. 400. 
 
 • is Weekly Dig. (X. Y.) 326; 31 
 I Inn (N. Y.) 256 ; affi'd 101 X. Y. 652.
 
 § 8l SPECIFIC LIEN BY ATTACHMENT. 161 
 
 parties might join in that State, 1 in actions to collect 
 debts, effects, or choses in action attached by the sheriff, 2 
 but the court observed that this was not such a case. 
 The counsel sought, upon the authority of Bates v. 
 Plonsky, 3 to maintain the action as being instituted for 
 the protection, preservation, and enforcement of the lien 
 obtained by the supposed levy of the attachment, but the 
 court said that the precedent cited was a suit of a differ- 
 ent nature, and was prosecuted merely to enjoin the 
 distribution of a fund until the rights of the conflicting 
 claimants could be established. It is observed in the 
 course of the opinion that a creditor could only file a bill 
 to annul a fraudulent transfer after return of execution 
 unsatisfied, 4 or in aid of the execution after the recovery 
 of a judgment. 5 
 
 The judgment in this case may have been correct, but 
 in view of the other authorities cited, the decisions of 
 that State relative to the rio-hts of an attaching creditor 
 are not in a very clear or satisfactory condition. We 
 incline to deny that a mere attaching creditor can, under 
 any correct theory of law and without legislative aid, 
 become an actor in a creditor's suit. Indeed the under- 
 lying principles of the cases in which it is sought to make 
 a lien acquired by the provisional remedy of attachment 
 the practical equivalent of a lien procured by final judg- 
 ment, are subversive of the time-honored policy and rule 
 of the courts, that a creditor's bill must be founded upon 
 
 1 See N. Y. Code Civ. Pro. §£ 655-667. N. Y. 261, 82 N. E. Rep. 775 ; Keller 
 
 '•'Compare Thurber v. Blanck, 50 N. v. Payne, 22 Abb. N. C. (N. Y.) 
 
 Y. 86; People ex rel. Cauffman v. Van 1 N. Y. Supp. 148 ; W hitnej \. I 
 
 Buren, 136 N. Y. 252, 32 N. E. Rep. 148 N. Y. 256, 42 N. E. Rep. 661. 
 775 ; Whitney v. Davis, 148 N. Y. 260, 4 See Chatauque Co. Bank v. Risley, 
 
 42 N. E. Rep. 661; Lynch v. Ciary, 52 10 N. Y. 370 ; Cole v. Tj Ler, 65 N. Y. 
 
 N. Y. 183. 73 : Ballou v. Jones. 13 Hun (N. Y.) 
 
 3 28 Hun (N. Y.) 112. See People 629. 
 ex rel. Cauffman v. Van Buren, 136 5 See Adsit v. Butler, 87 X. Y. 585. 
 
 II
 
 1 62 SPECIFIC LIEN BY ATTACHMENT. § 8 1 
 
 a definite claim, established by a judgment at law. 1 If 
 the innovations in modern procedure call for the abroga- 
 tion of this old chancery practice, it should not be super- 
 seded by indirection, but deliberately, and by some care- 
 fully formulated legislative substitute. The requirement 
 is neither artificial nor technical ; it is a necessary pro- 
 tection and safeguard to the debtor. Manifestly, where 
 the property in controversy is of such character as not to 
 be susceptible to an attachment lien, the attaching cred- 
 itor cannot, either as plaintiff or defendant, avoid or 
 attack any alienation or disposition that may have been 
 made of it ; he has no status and no lien. Where, how- 
 ever, an attachment lien has been actually acquired, and 
 the officer or attaching creditor is made defendant in a 
 suit by the fraudulent alienee, the efficacy of the lien 
 may be vindicated by setting up the fraud by way of 
 defense, because the plaintiff will be forced to recover 
 upon the strength of his own title, and if it be shown that 
 such title is affected with fraud as regards the defendant 
 or attaching creditor, the plaintiff will fail to make out a 
 good title. 2 Chancellor Green said in New Jersey: 
 
 1 See § 73. Wales v. Lawrence, 36 attaching creditor to maintain, ordi- 
 N. J. Eq. 209. narily, prior to judgment and execu- 
 
 2 In Whitney v. Davis, 148 N. turn, nor to introduce any innovation 
 Y. 201, 42 N. E. Rep. 661, Gray, upon the settled rule It was con- 
 J., said: ''All that the Cauffman sidered, however, that where the 
 case (People ex rel. Cauffman v. debtor's property was about being 
 Van Buren, 136 N. Y. 252, 32 N. E. transferred beyond the reach of the 
 Rep. 775) decided was, that special sheriff, in whose hands it was, a case 
 circumstances mighl exist and if was presented where the court might 
 shown thai they would authorize the properly extend its equitable arm and 
 
 granting of equitable relief at the in- stay the threatened transfer 
 
 stance <«t' an attaching creditor, What reason is there, or what justifi- 
 
 though prior to judgment and execu- cation exists for allowing an attach- 
 
 tion, in order to preserve tin- debtor's ing creditor, before hi' has established 
 
 property in a condition where a re- his claim against his alleged debtor, 
 
 covery by the attaching creditor to attack an apparently valid transfer 
 
 could be made effective. It was not of real estate?" An attaching creditor 
 
 mtended to hold thai an equitable may proceed by creditor's hill in New 
 
 action was within the power of the Jersey. Francis v. Lawrence, 48 N.
 
 § 82 PROPERTY TAKEN IN NAME OF THIRD PARTY. 1 63 
 
 " Equity will not, of course, grant its aid to enforce legal 
 process." 1 
 
 § 82. Property of the debtor taken in name of third party. — 
 The rules of procedure in cases where property has been 
 paid for by the debtor, but the title taken in the name of 
 third parties, have already been noticed. 3 The New 
 York Court of Appeals, in The Ocean National Bank v. 
 Olcott, 3 said, ill-advisedly as we think, that it was diffi- 
 cult to perceive the reason for any distinction between 
 the rights of creditors as to the property fraudulently 
 transferred by the debtor personally, and property paid 
 for by him and transferred by the vendor or grantor to a 
 third person. " Why," said Chief-Justice Church, " should 
 creditors have different and superior rights to enforce 
 their debts, in the latter case, to those enjoyed in the 
 former? I can see no reason for any distinction, and I 
 do not believe the statute has created any. But, in either 
 case, the commencement of an equitable action is neces- 
 sary to constitute a lien or charge, in any legal sense, 
 
 upon the land The harmony and analogies of the 
 
 law are better preserved by requiring all available legal 
 remedies to be resorted to, as a preliminary requisite to 
 an action for the application of the trust property." In 
 Ohio it is said that the statute 4 does not apply to cases 
 where the title is taken in the name of a third party for the 
 
 J. Eq. 512, 22 Atl. Rep. 259. An at- 77 N. Y. 219; Scott v. Morgan, 94 N. 
 
 taching creditor was allowed in Na- Y. 509, as bearing upon the jurisdic- 
 
 tional Park Bank v. Goddard, 131 N. tion wnich was hotly contested. 
 
 Y. 494, to file a bill and secure an > Robert v. Hodges, 16 N. J. Eq. 303. 
 
 injunction, the appointment of are- See Wales v. Lawrence, 36 N. J. Eq. 
 
 ceiver and the sale of an attached 209. 
 
 stock of goods, also claimed by numer- 2 See § 57. 
 
 ous defendant creditors who had 3 46N. Y. 23. 
 
 revoked the sales for fraud and had ' Swan & Sayler's Stats. 397, regu- 
 brought replevin suits, each claiming lating the mode of administering as- 
 disputed portions of the partially signments in trust for t he benefit "| 
 manufactured stock. Compare Su- creditors. 
 pervisors of Saratoga Co. v. Deyoe,
 
 164 PROPERTY TAKEN IN NAME OF THIRD PARTY. § 82 
 
 reason that the avoidance of the conveyance merely leaves 
 the title in the grantor, which, of course, does not benefit 
 the creditor; 1 such an interest it is argued must be reached 
 by a creditor's bill.- It cannot be sold on execution. 3 This 
 question arose in Spaulding v. Fisher. 4 It was held that 
 property purchased with the funds of the debtor, though 
 taken in the name of a third party, was the property of the 
 debtor as regards his creditors. The court said: u Its 
 fraudulent transfer and concealment is equally established, 
 whether the transfer is directly from the debtor or from 
 another by his direction and procurement, the property 
 transferred having been purchased with his funds. The 
 object of the statute is to afford a remedy to the creditor 
 against any one to whom the property of his debtor no mat- 
 ter in what it consisted, or how situated, has been fraudu- 
 lently transferred for the purpose, and with the intent on 
 the part of the debtor transferring, and the individual 
 receiving such transfer, to conceal the same, so as ' to secure 
 it from the creditors and prevent its attachment or seizure 
 on execution.'" 5 Even where by statute his interest can 
 be sold on attachment or execution it has been held that 
 this did not change the nature of the interest which those 
 claiming under him take in the property so conveyed. 
 
 1 Shorten v. Woodrow 34, O. S. 645. 1844, c. 107, took effect, land paid for 
 
 2 Bomberger v. Turner, 13 O. S. 263. and occupied by a debtor, the legal 
 See Martin v. Elden, 32 O. 8. 282. title to which had never been in him, 
 Compare Combs, v. Watson, 32 0. S. but had been conveyed to another per- 
 228. son in order to secure it from hiscred- 
 
 3 Garliel<] v. Hatmaker,15 X. Y. !?.">. itors, could not be attached or taken on 
 
 An equitable trust arises in favor of execution as his property. Hamilton 
 
 creditors enforceable in equity. Brown v. ( !one, 99 Mass. 47 s ; Howe \ . Bishop, 
 
 v. Chubb, i:::. \. Y. 177, :!l X. E. Rep. 3 Met. (Mass.) 26. See also Gar- 
 
 1030. Batesv. Ledgerw I M'f'gCo., field v. Hatmaker, 15 N. Y.475;Web- 
 
 130 X. Y. 205,29 X. E. Rep. 102. ster v. Folsom, 58 Me. 230. Compare 
 
 Robertson v. Sayre, 184 N.Y. '■><). :ii Guthrie v. Gardner, 19 Wend. (N. Y.) 
 
 N. E. Rep. 250. 114 ; and see Arbuckle Brothers Coffee 
 
 '•-)7 Me. 415. See § 57. Co. v. Werner, 77 Tex. 43; 13 S. W. 
 
 In Massachussetts, until the St. of Rep. 963.
 
 § 83 WHEN JUDGMENT tS UNNECESSARY. [65 
 
 As to them the conveyance is valid, so that e. g. his wife 
 is not entitled to any interest in the propertyby virtue of 
 the marriage. 1 
 
 § 83. When judgment is unnecessary.— It has been 
 decided, though the question is a debatable one, that in 
 special cases, if the execution cannot be issued in the State 
 in which the land lies, it will suffice if issued in the State of 
 the debtor's residence ; 2 and if the debtor's property is in 
 the hands of a receiver appointed by the court, so that a 
 levy cannot be made, levy is excused; 3 the same rule 
 applies when the property is in the hands of an assignee 
 in bankruptcy; 4 and where, by reason of special circum- 
 stances, the creditor has no remedy at law, it has been 
 argued that the legal remedy cannot be exhausted before 
 proceeding in equity. 5 McCartney v. Bostwick 6 seems 
 to be in its general statements overruled by Estes v. 
 Wilcox ; 7 at least the courts have so held. 8 A distinc- 
 tion is drawn in McCartney v. Bostwick between prop- 
 erty fraudulently alienated by the debtor, and property 
 paid for by him and taken in the name of a third party. 
 In the former instance, the proceeding is to remove imped- 
 iments in the way of reaching the debtor s property; in the 
 latter, it is to charge with a statutory lien the property of 
 a third party, which the debtor never owned ; in the one 
 case, it is to exercise auxiliary jurisdiction in aid of legal 
 process ; in the other to enforce a trust of which the courts 
 
 1 Marshall v. Whitney, 43 Fed. Rep, See also Adsit v. Sanford, 23 Hun 
 
 343 ; but see Whitney v. Marshall, 138 (N. Y.) 49. 
 
 Ind. 472, 37 N. E. Rep. 964. 4 Barker v. Barker, Assignee, 2 Fed. 
 
 - McCartney v. Bostwick, 32 N. Y. Cas. 807. 
 
 53. 6 Kamp v. Kamp, 46 How. Pr. (N. 
 
 3 Stewart v. Beale, 7 Hun (N. Y.) Y. ) 143 ; overruled in other respects, 59 
 
 405. This case contains an important N. Y. 212. See § 80. 
 
 review of the authorities, and is af- 6 32 N. Y. 53. Compare Niver v. 
 
 firmed without an opinion in the Crane, 98 N. Y. 40. 
 
 Court of Appeals. See 68 N. Y. 629. 7 67 N. Y. 264. 
 
 8 Evans v. Hill, 18 Hun (N. Y.) 465.
 
 l66 WHEN JUDGMENT IS UNNECESSARY. § 83 
 
 of law have no jurisdiction. We have already shown that 
 Chief-Justice Church, in a later case, could see no reason 
 for this distinction. 1 In a controversy which arose in 
 Georgia, it was decided that where a creditor of an insol- 
 vent estate was under injunction not to sue the executor, 
 this constituted a good excuse for not obtaining judgment 
 on his debt before proceeding by bill in equity to cancel a 
 voluntary conveyance made by the testator in his lifetime. 2 
 The court in this case seemed determined to favor the 
 creditor, for it was held that if, during the pendency of the 
 bill, a judgment or decree establishing the amount of the 
 debt was obtained against the executor, it might be brought 
 into the bill by way of amendment, and used as effectively 
 as if the adjudication had preceded the filing of the bill, 
 and had been originally alleged therein. 3 Where the 
 performance of a condition becomes impossible or illegal, 
 performance is excused. 4 So in some States creditors 
 may proceed against an insolvent estate without the 
 return of an execution. 5 In Case v. Beauregard, 6 Mr. 
 Justice Strong observed : " But, after all, the judgment 
 and fruitless execution are only evidence that his legal 
 remedies have been exhausted, or that he is without 
 
 ■The Ocean National Bank v.Olcott, pare Crompton v. Anthony, 13 Allen 
 
 46 N. Y. 22. See§ 82. (Mass.) 36; Wright v. Campbell, 27 
 
 'Compare Shellington v. Howland, Ark. 637 ; Everett v. Raby, 104 N. C. 
 
 53 N. Y. 371. 479, 10 S. E. Rep. 526; Gilbert v. 
 
 3 Cleveland v. Chambliss, 64 Ga. Stockman, 81 Wise. 802, 51 N. W. Rep. 
 
 352. 1076, 52 Id. 1045. 
 
 4 Shellington v. Howland, 53 N. Y. • 101 U. S. 690. "This rule is not 
 
 374; Cohen v. N. Y. Mutual Life Ins. so unrelenting as to deny to a party 
 
 Co., 50 N. Y. 610; Semmes v. Hartford the interposition of the equity powers 
 
 Ins. Co., 13 Wall. 158. of the court when the situation is such 
 
 5 Steere v. Hoagland, 39 111. 264 ; as to render impossible the aid of a 
 
 McDowell v. Cochran, 11 111. 31 ; Bay court of law to there take the pre- 
 
 v. Cook, 31 111. 336 ; Hagan v. Walker, liminary steps and produce what 
 
 14 How. 32 ; Merry v. Fremon,44 Mo. ordinarily may be treated as the con- 
 
 518; Haston v. Castner, 29 N. J. Eq. dition precedent to the application 
 
 536; Johnson v. Jones, 79 Ind. 141; for equitable relief." National Trades- 
 
 Platt v. Mead, 9 Fed. Rep. 96. Com- men's Bk. v. Wetmore, 124 N. Y. 249.
 
 § 83 WHEN JUDGMENT IS UNNECESSARY. 1 67 
 
 remedy at law. They are not the only possible means of 
 proof. The necessity of resort to a court of equity may 
 be made otherwise to appear. Accordingly the rule, 
 though general, is not without many exceptions. Neither 
 law nor equity requires a meaningless form, ''Bona, sed 
 imposs'ibilia non cogit lex' It has been decided that 
 where it appears by the bill that the debtor is insolvent 
 and that the issuing of an execution would be of no 
 practical utility, the issue of an execution is not a neces- 
 sary prerequisite to equitable interference. 1 This is cer- 
 tainly true where the creditor has a lien or a trust in his 
 favor." 2 The observations of Mr. Justice Strong were 
 not accorded hearty approval for a long time in the 
 Supreme Court itself. 3 The rule laid down by him has 
 been followed, however, in many cases, especially where a 
 trust existed in favor of the creditor. 4 In Russell v. 
 Clark, 5 Chief-Justice Marshall, in discussing the general 
 subject, said : " If a claim is to be satisfied out of a 
 fund, which is accessible only by the aid of a court of 
 chancery, application may be made, in the first instance, 
 to that court, which will not require that the claim should 
 be first established in a court of law." 6 Then, as we 
 shall presently see, 7 in cases where the statute gives a 
 
 'Citing Turner v. Adams, 46 Mo. Pack. Co., 46 Fed. Rep. 584 ; Consoli- 
 
 95 ; Postlewait v. Howes, 3 la. 365 
 Ticonic Bank v. Harvey, 16 la. 141 
 Botsford v. Beers, 11 Conn. 369 
 
 dated T. L. Co. v. Kansas City Var- 
 nish Co., 45 Fed. Eep. 7 ; Kanka- 
 kee "Woolen Mill Co. v. Kampe, 
 
 Payne v. Sheldon, 63 Barb. (N. Y.) 38 Mo. App. 234; Reyburn v. Mitch- 
 
 169. See Fink v. Patterson, 21 Fed. ell, 106 Mo. 365, 16 S. W". Rep. 592 ; 
 
 Rep. 609. Sage v. Memphis, etc. R. R. Co., 
 
 - See Austin v. Morris, 23 S. C. 403. 125 U. S. 376, 8 S. C. Rep. 887 ; Blanc 
 
 3 Taylor v. Bowker, 111 U. S. 110, v. Paymaster Mining Co., 95 Cal. 524. 
 4 S. C. Rep. 397; People's Savings 30 Pac. Rep. 765. 
 
 Bank v. Bates, 120 U. S. 556, 7 S. C. 5 7 Cranch 89. 
 
 Rep. 679. Compare Thompson v. 6 See Shufeldt v. Boehm, 96 111.563; 
 
 Van Vechten, 27 N. Y. 568, 582; Bax- Steere v. Hoagland, 39 111. 264. 
 
 ter v. Moses, 77Me. 476 1 Atl. Rep. 7 See Chap. VII. Bennett v. Minotl 
 
 350 ; Jones v. Greene, 1 Wall. 330. 28 Oreg. 339, 44 Pac. Rep. 288. 
 
 4 Chicago Bridge Co. v. Anglo- Amer.
 
 1 68 ABSCONDING DEBTORS. § 84 
 
 new remedy in favor of creditors at large, by giving to 
 an assignee or trustee for their benefit a statutory right 
 to property conveyed in fraud of creditors, this statutory 
 right takes the place of the specific lien required by law 
 as a condition of the ri^ht of individual creditors to con- 
 test the validity of the transfers. 1 
 
 § 84. Absconding - and non-resident debtors. — The fact 
 that the debtor is a non-resident, and has no property 
 within the State, has been considered not to be proof 
 that all the legal remedies have been exhausted. ~ If he 
 has fraudulently alienated real property within the State, 
 his interest, whatever it may be, must be first reached by 
 attachment. 3 Where, however, the debtor has absconded 
 so that no personal judgment can be obtained against 
 him, and there is no statutory- proceeding by which his 
 property can be reached, it has been held that a creditor's 
 bill will lie in the first instance, and from the necessity of 
 the case, 4 and where a State statute provides that in case 
 of fraudulent alienations a trust results to creditors 
 where the debtor is a non-resident and has no property 
 in the State, an action to enforce the trust may be begun 
 without first obtaining judgment. 5 It is considered as 
 analogous to a proceeding to reach and subject the 
 equities of a deceased debtor to the claims of creditors, 
 or to satisfy a debt from a specific equitable fund, as to 
 enforce a lien, in neither of which cases is a personal 
 
 'Southard v. Benner, 72 N. Y.427; Greenway v. Thomas, 14111. 372. Con- 
 Barton v. Hosner, 24 Hun (N. Y.) 471; tra, Anderson v. Bradford, 5 J.J. 
 Cadj v. Whaling, 7 Biss. 430;Cragin Marsh. (Ky.) 69 ; Scott v. McMillen, 1 
 v. Carmichael, 2 Dillon, 520; Piatt, As- Litt. (Ky.) 302. 
 signee.v. Matthews, 10 Fed. Rep. 280. 4 See Turner v. Adams, 46 Mo. 95 ; 
 
 'Ballou v. Jones, 13 Hun (N. Y.) Pope v. Solomons, 36 Ga. 541 ; Taylor 
 
 631. I!m 1 see National Tradesmen's v. Branscombe, 74 la. 534, 38 N. W. 
 
 Bank r.Wetmore, 124 N. Y. 241, 20 N. Rep. 400. 
 E. Rep. 548. Overmire v. Ha worth, 48 Minn. 
 
 3 Dodd v. Levy, 10 Mo. App. 121; 372, 51 N. W. Rep. 121.
 
 §85 PRACTICE IN INDIANA, NORTH CAROLINA, ETC. 169 
 
 judgment required. 1 A full review of the authorities 
 upon this question may be found in Merchants' National 
 Bank v. Paine, 2 an important and well-considered case. 
 The court there maintain the right of a creditor, before 
 the recovery of judgment, to file a bill to reach equitable 
 assets where the absconding debtor had left no legal 
 assets liable to attachment, 3 and cite in support of their 
 conclusion cases from Kentucky, 4 Virginia, 5 Indiana/' 
 South Carolina,'' and Missouri, 8 and adopt the views of 
 the Supreme Court of Missouri, already quoted. Where 
 a judgment by personal service, or jurisdiction by attach- 
 ment, are both impossible, the courts of New York are 
 now inclining to allow a simple contract creditor to file a 
 creditor's bill. 9 
 
 § 85. Practice in Indiana, North Carolina, Alabama and 
 Texas. — In some States where the tendency to dispense 
 with the prerequisite of a judgment has been introduced a 
 novel practice as to joinder of claims prevails. Thus a claim 
 to cancel a conveyance of real property from a husband to 
 his wife, as being fraudulent against creditors, may be 
 united with a demand against the husband arising out of 
 contract. 10 Then in an action against a husband and wife, 
 
 ■Pendleton v. Perkins, 49 Mo. 565. 5 Peay v. Morrison's Exrs., 10 Gratt. 
 
 Compare O'Brien v. Coulter, 2 Blackf. (Va.) 149. 
 
 (Ind.) 421; Russell v. Clark, 7 Cranch 6 Kipper v. Glancey. 2 Blackf. (Ind.) 
 
 89, per Chief -Justice Marshall. See 356; O'Brien v. Coulter, 2 Blackf. 
 
 §79. (Ind.) 421. 
 
 5 13R. I. 592. Tarrar v. Haselden, 9 Rich. Eq. 
 
 3 Scott v. McMillen, 1 Litt. (Ky.) (S. G) 331. 
 
 302. Compare Russell v. Clark, 7 8 Pendleton v. Perkins, 49 Mo. 565. 
 
 Cranch 69, 89 ; Miller v. Davidson, 8 9 Nat. Tradesmen's Bank v. Wet. 
 
 111. 518, 522; Greenway v. Thomas, 14 more, 124 N.Y. 241, 26N. E. Rep. 548; 
 
 111. 271; Anderson v. Bradford, 5 J. J. Patchen v. Rofkar, 12 App. Div. (X. 
 
 Marsh. (Ky.) 69; Meux v. Anthony, 11 Y.) 475, 42 X. Y. Supp. 35. See Le 
 
 Ark. 411. See Turner v. Adams, 46 Fevre v. Phillips, 81 Hun (N. Y.) 
 
 Mo. 95, 99; McDermutt v. Strong, 4 30 N. Y. Supp. r09. 
 
 Johns. Ch. (N. Y.) 687, 689. 10 Lindley v. Cross, 31 Ind. 106. 
 
 4 Scott v. McMillen, 1 Litt. (Ky.) 
 302.
 
 170 PRACTICE IN INDIANA, NORTH CAROLINA, ETC. § 85 
 
 instituted to obtain judgment against the husband for 
 the price of goods sold, a fraudulent conveyance from the 
 husband to the wife may be set aside so as to let in the 
 lien of the judgment when recovered. 1 In North Caro- 
 lina the court declares it obvious that the rule exacting the 
 recovery of a judgment at law before proceeding inequity 
 grew out of the relations of the two courts under the 
 former system, one acting as an aid to the other, and 
 that it was essential to the harmony of their action in 
 the exercise of their separate functions in the administra- 
 tion of the law. Chief-Justice Smith continuing, said : 
 " It must of necessity cease to have any force, when the 
 powers of both, and the functions of each, are committed 
 to a single tribunal, substituted in place of both. Why 
 should a plaintiff be compelled to sue for and recover 
 [judgment on] his debt, and then to bring a new action to 
 enforce payment out of his debtor's property in the very 
 court that ordered the judgment ? Why should not full 
 relief be had in one action, when the same court is to be 
 called on to afford it in the second ? The policy of the 
 new practice, and one of its best features, is to furnish a 
 complete and final remedy for an aggrieved party in a 
 single court, and without needless delay or expense." 2 
 The same rule is recognized in Texas, 8 and in Alabama 
 
 1 Prank v. Kessler, 30 Ind. 8. 77 Tex. 43, 13 S. W. Rep. 963. But it 
 
 8 Bank v. Harris, 84 N. C. 210. was held in Cassaday v. Anderson, 58 
 
 Claims for judgment ujjou coupons Tex. 535, that while as between two 
 
 and for a mandamus to coerce pay- creditors if one lias already obtained 
 
 ment were joined. McLendon v. Com- his judgment and instituted proceed- 
 
 missioners of Anson, 71 N. C. 38. So ings to set the fraudulent conveyance 
 
 it was held competent to proceed in aside, lie will have the right to have 
 
 the same action against an insolvent his debl satisfied out of the property, 
 
 debtor bank and against stockholders but the bringing of a suit to set aside 
 
 upon their individual liabilities under the conveyance by a simple contract 
 
 the charter. Glenn v. Farmers" Bank, creditor gives him no priority over the 
 
 72 X. C. 626. purchaser at an execution sale of 
 
 < assaday v. Anderson, 53 Tex. 535; another creditor. 
 Arbuckle Bros. Coffee Co. v. Werner,
 
 §85 PRACTICE IN INDIANA, NORTH CAROLINA, ETC. \J\ 
 
 a creditor without a lien may file a bill in chancery to dis- 
 cover assets. 1 The method of procedure indicated seems 
 to be an innovation. New York, the birthplace and 
 stronghold of the reformed procedure, clings, in the main, 
 tenaciously to the old practice of requiring a judgment 
 and execution before an appeal can be made to the equity 
 side of the court. Not only has the rule been rigidly 
 enforced in that State,, but, as is shown elsewhere, it has 
 been in some respects extended and strengthened. 2 The 
 rule has been relaxed in other States, but the cases which 
 completely subvert or overturn it are comparatively few 
 The old method of procedure did not result, as the court 
 supposed in Bank v. Harris, 3 wholly from the relation of 
 courts of law to courts of equity, nor is the necessity for 
 its observance abrogated by the amalgamation of these 
 jurisdictions. If the creditor is to be allowed to prove and 
 recover judgment upon his simple demand, and cancel 
 fraudulent conveyances, or reach equitable assets in the 
 same action, it would seem to follow that the usual inci- 
 dents of a creditor's suit would attach to the proceeding. 
 The creditor in an action for assault and battery, libel, or 
 slander, 4 might apply for an injunction against the debtor, 
 or for a receiver of his property, or embarrass him by 
 filing a lis pendens. The time-honored rule that the 
 debtor's management and control of his property should 
 not be interfered with by injunction or otherwise, before 
 judgment, would be uprooted, 5 and an unscrupulous 
 creditor, having only the faintest shadow of a claim, could 
 work out the debtor's financial destruction. The ancient 
 practice must not be regarded as technical or artificial, 
 
 1 Wooten v. Steele, 109 Ala. 565. ne}' v. Davis, 148 N. V. 356, 12 N E. 
 
 s See Estes v. Wilcox, 67 N. Y. 264 ; Rep. 661. See §§ 79, 80. 
 
 Burnett v. Gould, 27 Hun (N. Y.) 366 ; 3 84 N. C. 210. 
 
 Crippen v. Hudson, 13 N. Y. 161 ; 4 See § 90. 
 
 Adee v. Bigler, 81 N. Y. 349 ; Whit- 5 See § 52.
 
 172 
 
 RETURN OF EXECUTION UNSATISFIED. 
 
 §86 
 
 but as a safeguard to the debtor dictated alike by reason 
 and necessity. If the practice is to undergo a change, as 
 seems likely in some States, then the joinder should be 
 limited to cases of liquidated demands of creditors, certain 
 in their character, and provisional relief should be with- 
 held. The union of remedies is calculated to crowd into 
 a single action a multitude of complicated issues concern- 
 ing distinct transactions, as to the debt and the facts 
 attending the alienation, a result always to be deprecated; 
 and would necessitate the presence of the alleged fraud- 
 ulent vendee in the action. 1 
 
 § 86. Return of execution unsatisfied.— A cloud of cases 
 may be cited to the general effect that, to reach personal 
 property or equitable assets, by bill, a creditor must first 
 secure the return of an execution unsatisfied 2 unless it can 
 be shown that the property is not susceptible to levy. 3 
 And it is immaterial that the return of the execution was 
 
 l See§ 181. 
 
 2 Morgan v. Bogue, 7 Neb. 429 ; 
 Castle v. Bader, 23 Cal. 76 ; Newman 
 v. Willetts, 52 111. 98 ; Brown v. Bank 
 of Mississippi, 31 Miss. 454 ; McElwain 
 v. Willis, 9 Wend. (N. Y.) 548; 
 Hogan v. Burnett, 37 Miss. 617 ; Yas- 
 ser v. Henderson, 40 Miss. 519 ; Scott 
 v. Wallace, 4 J. J. Marsh. (Ky.) 654 ; 
 Roper v. McCook, 7 Ala. 318 ; Baxter 
 v. Moses, 77 Me. 465; Weigtman v. 
 Hatch, 17 111. 286 ; Bigelow v. 
 Andress, 31 111. 334 ; Beach v. Bestor, 
 45 111. 346. In National Tube Works 
 Co. v. Ballou, 146 U. S. 523, 13 S. C. 
 Rep. 165, Mr. Justice Blatchford 
 said : " Where it is sought by equi- 
 table process to reach equitable in- 
 terests <il' a debtor, the bill, unless 
 otherwise provided by statute, causi 
 set forth a judgment in the juris- 
 diction where the suit in equity is 
 brought, the issuing of an execution 
 thereon, ami its return unsatisfied, or 
 
 must make allegations showing that 
 it is impossible to obtain such a judg- 
 ment in any court within such juris- 
 diction." Citing Taylor v. Bowker, 111 
 U. S. 110, 4 S. C. Rep. 397 : Webster v. 
 Clark. 25 Me. 313 ; Parish v. Lewis, 
 Freeman's Ch. 299 ; Brinkerhoff v. 
 Brown, 4 Johns. Ch. (N. Y.) 671 ; Dun- 
 levy v. Tallmadge, 32 N. Y. 457; 
 Terry v. Anderson, 95 U. S. 628 ; 
 Smith v. Railroad Co., 99 U. S. 398; 
 Hawkins v. Glenn, 131 U. S. 334, 9 
 S. C. Rep. 739 ; McLure v. Benini, 2 
 Ired. Eq. (N. Car.) 513; Famed v. 
 Harris, 19 Miss. 371 ; Patterson v. 
 Lynde, 112 111. 196; Swan Land, etc. 
 Co. v. Frank, 148 U. S. 612, 13 S. C. 
 Rep. 691. In Illinois I lie judgment- 
 creditor need nut wait for the return 
 • if execution unsatisfied. I Jill man v. 
 Nadelhoffer, 162 111. 625, 45 N. E. 
 Rep. 680. 
 
 3 Snodgrass v. Andrews, 30 Miss. 
 472.
 
 RETURN OF EXECUTION UNSATTSI III'. 
 
 173 
 
 made at the request of the plaintiff and within sixty days 
 after its issuance. 1 A seeming conflict of decisions, more 
 or less embarrassing, must be noticed, between the 
 Court of Appeals of New York, in Thurber v. Blanck,-' 
 and the Commission of Appeals of the same State, in 
 Mechanics' and Traders' Bank v. Dakin. 3 The Commis- 
 
 1 Forbes v. Waller, 25 N. Y. 430. 
 
 2 50N. Y. 80. 
 
 3 51 N. Y. 519 ; reargument de- 
 nied, 54 N. Y. 681. Compare Mc- 
 Elwaine v. Willis, 9 Wend. (N. Y.) 
 561 ; reviewed in Smith v. Weeks, 60 
 Wis. 100. See the reconciliation of 
 these cases stated by Maynard, J. 
 In People ex rel. Cauffman v. Van 
 Buren, 136 N. Y. 259, 32 N. E. 
 Rep. 775, the court says: "In 
 Thurber v. Blanck (50 N. Y. 80), 
 it was held that an attaching creditor 
 had no standing in court to reach 
 equitable assets until his remedy at 
 law was exhausted, nor to attack a 
 fraudulent transfer of the property of 
 his debtor until after judgment ; and 
 in the Mechanics' and Traders' Bank 
 v. Dakin (51 N. Y. 519), the Commis- 
 sion of Appeals held that an attaching 
 creditor, after the recovery of judg- 
 ment and the issuing of execution 
 may maintain an equitable action in 
 his own name to set aside a fraudu- 
 lent transfer of the property which 
 had been seized under the attachment. 
 The impression seems to have pre- 
 vailed that there was an irreconcilable 
 conflict between these two cases, and 
 the reporter, in a foot note in the 51 
 N. Y., says: 'This case, it will be per- 
 ceived, was argued prior to the de- 
 cision of the case of Thurber v. 
 Blanck (50 N. Y. 80). with which it 
 is in conflict. That case had not been 
 brought to the attention of the Com- 
 mission at the time of the decision 
 herein.' But we fail to discover any 
 real ground of antagonism between 
 
 them. In Thurber v. Blanck the 
 court was dealing with an attempl 
 on the part of an attaching creditor to 
 reach equitable assets, which it has 
 been uniformly held cannot be done 
 until judgment has been recovered, 
 execution issued and returned un- 
 satisfied, and an action or proceeding 
 in the nature of a creditor's bill insti- 
 tuted. The provisions of the Revised 
 Statutes (now g§ 1871-9 of the Code) 
 which authorized a judgment-cred- 
 itor's action imperatively required the 
 recovery of a judgment and the issue 
 and return of an execution unsatisfied 
 as an indispensable condition of the 
 creditor's right to bring the action. 
 In Bank v. Dakin, the attaching 
 creditor had, by the recovery of judg- 
 ment and the issue of execution, ac- 
 quired the right to have the attached 
 property applied to the satisfaction of 
 the execution, but in the assertion of 
 this right he found the way obstructed 
 by the interposition of a conveyance 
 of the property by his debtor, which 
 was apparently valid, but which was, 
 in fact, void. In such cases it has 
 always been held thai while the pro- 
 cess for the collection of the debl was 
 outstanding the equitable jurisdiction 
 of the court could be invoked to re 
 move the fraudulent obstruction to 
 the legal process and permit it to be 
 effectually enforced. The subsequent 
 decisions bearing upon the question in 
 tins court have all been in line with 
 the principles enunciated in these two 
 typical cases, but none of them in- 
 volved the point here presented of
 
 174 RETURN OF EXECUTION UNSATISFIED. ■ § 86 
 
 sion held that when a suit had been commenced by attach- 
 ment, and a judgment recovered, the plaintiff, after 
 issuance of execution, and before its return, could main- 
 tain an equitable action to set aside a fraudulent assign- 
 ment of a bond and mortgage, to the end that it might be 
 applied toward the satisfaction of the judgment ; the theory 
 being, that, by the service of the attachment, a lien was 
 acquired upon the bond and mortgage, which could be 
 enforced after judgment, and to which the fraudulent 
 assignment was no impediment. 1 The Court of Appeals 
 held, however, that an equitable action could not be 
 brought in a somewhat different case until the remedy at 
 law was first exhausted ; that is, until the execution on 
 the judgment had been returned unsatisfied ; that no lien 
 could be acquired by the attachment upon a bond and 
 mortgage, the legal title to which was in a third person ; 
 that in the case of choses in action and debts, the lien is 
 constructive, and cannot operate through an intermediate 
 or inchoate legal title ; that in such a case no debt at law 
 is owing- to the defendant, and there is nothing for the 
 attachment to operate upon, since it can only act upon 
 legal rights, and not upon mere equitable interests ; that 
 debts and choses in action are legal assets under the attach- 
 ment law only when the process acts directly upon the 
 legal title, and that when they are so situated as to 
 require the exercise of the equitable powers of the court 
 
 the right of an attaching creditor to ment had not issued." Judge Gray 
 
 prevent the application of the at- also says in Whitney v. Davis, 148 N. 
 
 tached property to the payment of a Y. 260, 42 N. E. Kep. 661, that Thur- 
 
 prior lieu. It must he apparent that ber v. Blanck, 50 N. Y. 80, and Me- 
 
 unless such a right exists the remedy chanics' and T. Bank v. Dakin, 51 N. 
 
 by attachment will be lost in many Y. 519, " were not in conflict with each 
 
 cases. The sheriff must sell the other, because contemplating different 
 
 property under the prior executions conditions of the property sought to 
 
 and apply the proceeds to their pay- be reached." 
 ment, and the plaintiff would be in 'See §81. 
 no better condition than if his attach-
 
 § 86 RETURN OF EXECUTION UNSATISFIED. 1 75 
 
 to place them in that condition they are to be regarded 
 as equitable assets only, and that, in such a case, to allow 
 the equitable action upon the issuance of an execution 
 and before its return, would be in direct conflict with the 
 rule that a creditor has no standing in court to reach 
 equitable assets until his remedy at law is exhausted. 
 The decision of the Commission of Appeals, it may be 
 observed, was unanimous, while that of the Court of 
 Appeals was rendered by a majority of the court, three 
 judges dissenting, and three concurring with the chief- 
 justice. The Commission of Appeals was a temporary 
 court, called into existence to relieve the overcrowded 
 calendar of the Court of Appeals. Its duration as a court 
 was limited and it has ceased to exist. The Court of 
 Appeals being the permanent appellate court its' decision, 
 if there be a real conflict, which the cases attempt to deny, 
 has been generally followed, 1 though it must be conceded 
 that the relief which the Commission of Appeals attempted 
 to extend would, in many instances, prove highly ser- 
 viceable to creditors. The decision of the New York 
 Court of Appeals, in Thurber v. Blanck, a is not to be 
 taken as being in conflict with the class of cases in which 
 it has been held that an equitable action may be brought 
 after the issuance of an execution, and before its return 
 unsatisfied, to set aside a fraudulent transfer of goods 
 and chattels, or of real estate which can be levied upon 
 under the execution when the fraudulent impediment is 
 removed. 3 A rule ought to be deduced from the authori- 
 
 1 Gross v. Daly, 5 Daly (N. Y.) 54:! ; 3 Gross v. Daly, 5 Daly (N. Y. 1 5 1 J : 
 Castle v. Lewis, 78 N. Y. 137. See McElwain v. Willis, 9 Wend. (N. V .) 
 Smith v. Longmire, 1 Am. lnsolv. R. 561 ; Heye v. Bolles, 2 Dalj (N. Y.) 
 426; Anthony v. Wood, 96 N. Y. 185, 231; McCollough v. Colby, 5 Bosw 
 citing this section. (N. Y.) 477 ; North America Fire I us. 
 
 2 50 N. Y. 80. See People <:r rel Co. v. Graham, 5 Sandf. (N. Y> 300 ; 
 Cauffman v. Van Buren, 136 N. Y. Falconer v. Freeman, 4 Sandf . Ch. (N. 
 252, 32 N. E. Rep. 775. Y.) 565; Greenleaf v. Mumford, 30
 
 176 
 
 REALTY AND PERSONALTY 
 
 §8 7 
 
 ties that no return of an execution need be shown where 
 the creditor is seeking equitable assets solely. 
 
 § 87. Distinction between realty and personalty as to issu- 
 ance of execution. — The predicate of the jurisdiction as 
 affecting realty is that the creditor has a lien, 1 and of 
 course if the lien has expired the creditor's action will fail. 2 
 A judgment is usually a lien upon real property by statute, 
 and hence authority can be found for the proposition 
 that a covinous conveyance of real property can be 
 attacked by a judgment-creditor without the issuance, 
 levy, or return of an execution. 3 Jurisdiction is invoked 
 in such cases in aid of the remedy at law. It may be 
 observed that, as a creditor must usually exhaust the 
 personal property of the judgment-debtor before having 
 recourse to the realty, it is generally essential to show, in 
 proceedings to reach the latter, that an execution has 
 been issued. 4 There is, however, an absence of harmony 
 in the authorities. The question came before the New 
 
 How. Pr. (N. Y.) 30. See Gibbons v. 
 Pemberton, 101 Mich. 397, 59 N. W. 
 Rep. 663. Although in some States 
 the distinction between suits to re- 
 move obstructions and suits to reach 
 equitable assets is lost sight of, and it 
 is required in both cases that execu- 
 tion should issue, the correct rule is 
 thai it is only required in the first 
 class of cases. Wisconsin Granite 
 Co. v. Gerrity, 144 111. 77, 33 N. E. Rep. 
 31 ; Fecheimer v. Hollander, 6 Mackey 
 l I ). C.), 512. 
 
 1 Partee v. Mathews, 53 Miss. 146 : 
 Pulliam v. Taylor, 50 .Miss. 551-554 ; 
 Carlisle v. Tindall, 49 Mis.. 229-232. 
 Evans v. Kill, is linn (N. Y.) 464. 
 
 "Cornell v. Radway, 22 Wis. 260 ; 
 Mohawk Bank v. Atwater, 2 Paige 
 (N. Y.) 58 : Clarkson v. De Peyster, 3 
 Paige (N. Y.)320; Shaw v. Dwight, 
 
 27 N. Y. 249 (contra, Adsit v. Butler, 
 87 N. Y. 5S7) ; Brinkerhoff v. Brown, 
 4 Johns. Ch. (N. Y.) 671 ; Royer 
 Wheel Co. v. Fielding, 61 How. Pr. 
 (N. Y.) 437 ; McCalmot v. Lawrence, 
 1 Blatcli. 232 ; Newman v. Willetts, 
 52 111. 98; Dillman v. Nadelhoffer, 
 162 111. 625, 43 N. E. Rep. 378 ; Vasser 
 v. Henderson, 40 Miss. 519; Baldwin 
 v. Ryan, 3 T. & C. (N. Y.) 253 ; Bin- 
 nie v. Walker, 25 111. App. 82 : Mult- 
 nomah Sheet Ry. Co. v. Harris, 13 
 Ore. 198, 9 Pac. Rep. 402; Payne v. 
 Sheldon, 63 Barb. (N. Y.) 169; Weigt- 
 inan v. Batch, 17 III. 281 ; Dargan v. 
 Waring, 11 Ala. 993. See Buswell 
 v. Lincks, 8 Daly (N. Y.) 518. 
 
 1 North Am. Fire Ins. ( !o. v. Gra- 
 ham, 5 Saudf. (N. Y.) 197 : reviewed 
 in McCollough v. Colby, 5 Bosw. (N. 
 Y.) 477.
 
 87 
 
 REALTY AND PERSONALTY. 
 
 177 
 
 York Court of Appeals, 1 and the result of the decision is 
 briefly to the effect that, in an action to set aside a fraud- 
 ulent conveyance of realty, the complaint must allege the 
 issuance of an execution and its return unsatisfied, or the 
 action must be brought in aid of an execution then out- 
 standing. The authorities in that State, on the general 
 proposition that all available legal remedies must be 
 pursued before resort to equity, 2 are reviewed, and 
 Shaw v. Dwight 3 distinguished. This decision being an 
 important utterance of the court of last resort, it follows 
 that in New York State, at least, execution must issue 
 upon a judgment before a creditor's action, or a suit to 
 annul a fraudulent conveyance of realty can be supported. 
 This places real property and equitable interests on 
 substantially the same basis, as regards the status of an 
 attacking creditor, and in some measure restricts his 
 rights. 4 
 
 1 Adsit v. Butler, 87 N. Y. 586. See 
 Spelman v. Freedman, 130 N. Y. 425, 
 29 N. E. Rep. 705 ; Weaver v. Havi- 
 land, 142 N. Y. 537, 37 N. E. Rep. 
 641 ; Gardner v. Lansing, 28 Hun (N. 
 Y.) 415; Importers' & Tr. Nat. Bank 
 v. Quackenbush, 143 N. Y. 571, 38 N. 
 E. Rep. 728. 
 
 2 Ocean Nat. Bank v. Olcott, 40 N. 
 Y. 12 ; Geery v. Geery, 63 N. Y 252 ; 
 Estes v. Wilcox, 67 N. Y. 264 ; Allyn 
 v. Thurston, 53 N. Y. 622 ; McCartney 
 v. Bostwiok. 32 N. Y. 62; Fox. v. 
 Moyer, 54 N. Y. 125 ; Crippen v. Hud- 
 son, 13 N. Y. 161. 
 
 3 27 N. Y. 244. 
 
 4 See Verner v. Downs, 13 S. C. 
 449 ; Hyde v. Chapman, 33 Wis. 399 ; 
 Dana v. Haskell, 41 Me. 25. In the 
 Holladay Case, 27 Fed. Rep. 845, the 
 court say : " The issue of an execu- 
 tion, and the return of nulla bona 
 thereon, is considered sufficient evi- 
 dence of the insolvency of the judg- 
 
 12 
 
 ment-debtor, and that the judgment- 
 creditor is remediless at law. But it 
 is not the only evidence of that fact, 
 nor, in my judgment, always the 
 best. The authorities are in appar- 
 ent conflict on this question. Wait 
 Fraud. Conv. § 68; Bump, Fraud. 
 Conv. 518, 527. But where the diver- 
 sity is not the result of local legisla- 
 tion, I think the apparent conflict 
 arises from confounding creditors' 
 bills to subject personal propery to the 
 satisfaction of a judgment with an 
 ordinary bill in equity to set aside or 
 postpone a conveyance of real prop- 
 erty on which the plaintiff's judgment 
 is, as against his debtor, a lien without 
 an execution. In the latter case the 
 right to maintain the suit is based on 
 the unsatisfied judgment, the fraudu- 
 lent conveyance, and the insolvency of 
 the debtor ; which latter fact may be 
 proved by any competent evidence, as 
 well as a return of nulla bona <>n an
 
 178 RAISING THE OBJECTION. § 88 
 
 To obtain an equitable lien upon property not the sub- 
 ject of levy and sale under execution, the creditor must, of 
 course, have exhausted his remedy under his judgment or 
 decree by the return of an execution unsatisfied. 1 The 
 return of the execution, even as to personalty capable of 
 being subjected to a lien, is not always essential. In Bus- 
 well v. Lincks,'~ Chief-Justice Daly said : "The equitable 
 aid of the court to set aside a fraudulent conveyance is 
 given where the one invoking it has a lien upon the prop- 
 erty which is obstructed by the conveyance. In the case 
 of personal property, a judgment-creditor acquires, by the 
 issuing of an execution, a lien upon the personal property 
 of the debtor as against a fraudulent conveyance, and the 
 aid of the court is given in that case to remove the 
 obstruction in the way of the execution, which cannot be 
 done if the execution has been returned, for the lein 
 under it is them at an end." 3 
 
 § 88. Raising the objection.— The objection that the cred- 
 itor's remedy is at law, or that his bill is without equity, or 
 his lien is suspended, may be raised at the hearing, 4 though 
 it is, of course, safer to bring it up by demurrer, if apparent 
 on the face of the pleading, or by answer, if the defect is 
 not so shown. The court may itself raise the objection. 5 
 
 execution." "Wisconsin Granite Com- 3 Citing Forbes v. Logan, 4 Bosw. 
 
 panyv. Gerrity. 144 111.77, 33 N. E. (N. Y.) 475; Watrous v. Lathrop, 4 
 
 Rep. 31. As to proof of insolvency, Sandf. (N. Y.) 700. 
 
 see Hodges v. Silver Hill Mining Co., 4 Meux v. Anthony, 11 Ark. 423; 
 
 9 Ore. 200 ; Terry v. Tubman, 92 U. Tappan v. Evans, 11 N. H. 311 ; Brown 
 
 S. 156; Case v. Beauregard, 101 U. v. Bank of Mississippi, 31 Miss. 454. 
 
 s. 688; McCalmont v. Lawrence, 1 5 Oelrichs v. Spain, 15 Wall. 211. 
 
 Blatchf. 232. " The doctrine of these and similar 
 
 1 Clarkson v. De Peyster, 3 Paige cases is, that the court, for its own 
 
 (N. Y.) 320; Shaw v. Dwight, 27 N. protection, may prevent matters 
 
 Y. 249; Brinkerhoff v. Brown, 4 Johns, purely cognizable at law from be- 
 
 Ch. (N. V.) <;?<)•, Adsil v. Butler, 87 ing drawn into chancery, at the 
 
 N. Y. 587; Fox v. Mover, 54 N. Y. 128. pleasure of the parties interested ; but 
 
 • 8 Daly (N. X Y.) 518. it by no means follows, where the sub-
 
 §88 RAISING THE OBJECTION. I 79 
 
 In concluding this chapter we may state that, as a general 
 rule, under both the old Chancery system and the reformed 
 procedure in New York, the bill should generally show 
 affirmatively that an honest attempt has been made to col- 
 lect the debt by the issuing of an execution against the 
 debtor and its return unsatisfied, and, where there are sev- 
 eral defendants jointly liable, that such effort has been made 
 and the remedy exhausted against all the judgment- 
 debtors before jurisdiction will be entertained in chan- 
 cery. 1 Where the sole purpose of the bill is to subject 
 real property fraudulently aliened to the lien of a judg- 
 ment the exaction that execution should have been 
 returned is not uniformly enforced. 
 
 ject-matter belongs to the class over altogether too late even though, if 
 
 which a court of equity has juris- taken in limine, it might have been 
 
 diction, and the objection that the worthy of attention." Reynes v. 
 
 complainant has an adequate remedy Dumont, 130 U. S. 354, 395, 9 S. C. 
 
 at law is not made until the hearing in Rep. 486. 
 
 the appellate tribunal, that the latter J Voorhees v. Howard, 4 Keyes (N. 
 
 can exercise no discretion in the dis- Y.) 383. See Child v. Brace, 4 Paige 
 
 position of such objection. Under the (N. Y.) 309 ; Reed v. Wheaton, 7 Paige 
 
 circumstances of ^this^case, it comes (N. Y.) 663. .
 
 CHAPTER V. 
 
 EXISTING CREDITORS. 
 
 §89. Classes of creditors — existing 
 and subsequent. 
 
 90. Contingent creditors. 
 
 91. Who are not creditors. 
 
 92. Transfer of right to sue. 
 
 §93 
 
 Voluntary alienations as to exist- 
 ing creditors. 
 
 94. Such conveyances only presump- 
 
 tively fraudulent. 
 
 95. Evidence of solvency. 
 
 " The complainant, not showing that he was at the time a creditor, cannot complain. Even 
 a voluntary conveyance is good as against subsequent creditors, unless executed as a cover for 
 future schemes of fraud."— Mr. Justice Field in Horbach v. Hill, 112 TJ. S. 149. 
 
 §89. Classes of creditors — existing and subsequent.— As 
 appertaining to the subject-matter of this treatise, credit- 
 ors may be said to resolve themselves into two great 
 classes or subdivisions, commonly named existing credit- 
 ors and subsequent creditors. Existing creditors are 
 those whose claims or demands against the debtor were 
 in being, or in existence, in some form at the date of the 
 alleged voluntary 1 or fraudulent alienation. 2 Subse- 
 quent creditors are those to whom the insolvent became 
 indebted at a time subsequent to the alienation which is 
 
 1 See Thomson v. Crane, 73 Fed. 
 Eep. 327; Horbach v. Hill, 112 U. S. 
 144, 149, 5 S. C. Rep. 81 ; Trezavent 
 v. Terrell, 96 Tenn. 528. 
 
 2 See Horbach v. Hill, 112 U. S. 149, 
 5 S. C. Rep. 81 ; Schreyerv. Scott, 134 
 U. S. 410, 10 S. C. Rep. 579. A person 
 who becomes a creditor after the con- 
 veyance, but before possession under it 
 is changed or notice given, is an exist- 
 ing creditor. Goll & F. Co. v. Mil- 
 ler, 87 la. 431, 54 N. W. Rep. 443; 
 Fox v. Edwards, 38 la. 215. Con- 
 cerning what evidence will be held 
 not sufficient to show that the 
 
 debt was in existence at the time 
 of the conveyance, see Pidcock v.Voor- 
 hies, 84 la. 705, 42 N. W. Rep. 646, 49 
 Id. 1038. It was decided in Minnesota 
 that a judgment-creditor who brings 
 an action to set aside a conveyance 
 made prior to his judgment is bound 
 to show affirmatively that the debt 
 for which it was rendered existed at 
 the time the conveyance was made. 
 Bloom v. Moy, 43 Minn. 397, 45 N. W. 
 Rep. 715. As to a debt contracted 
 partly before and partly after the con- 
 veyance, see Henderson v. Hender- 
 son, 133 Pa. St. 399, 19 Atl. Rep. 424.
 
 § go CONTINGENT CREDITORS. l8l 
 
 the subject of inquiry. The rights of these two classes of 
 creditors are manifestly and necessarily different ; x the 
 proofs in each case vary, and the measure of relief 
 extended by the courts in particular instances is largely 
 dependent upon the question as to which of these two 
 classes or subdivisions the complaining creditor belongs. 
 "The difference," says Chancellor Williamson, "between 
 existing and subsequent debts, in reference to voluntary 
 conveyances, is this — as to the former the fraud is an 
 inference of law, but as to the latter there must be fraud 
 in fact." 2 This latter distinction, as we shall presently see, 
 is not universally applied. Manifestly if the debtor has 
 made any secret reservation for his own benefit the aliena- 
 tion may be overturned by either class of creditors. 3 
 A party, we may observe, loses no rights by a change of his 
 securities, and the holder of a new note given in exchange 
 for an old one may attack a conveyance which is fraudu- 
 lent as to the old note. 4 
 
 §90. Contingent creditors. — In a multitude of cases it 
 has been repeatedly adjudged that a party bound by a 
 contract upon which he may become liable for the pay- 
 ment of money, although his liability be contingent, is a 
 debtor within the. meaning of the statute avoiding all 
 grants made to hinder or delay creditors. 5 A contin- 
 
 1 See Gordon v. Reynolds, 114 111. Gardner v. Hiker, 25 la. 348 ; Lowry 
 123, 28 N. E. Rep. 455 ; Jones v. King, v. Fisher, 2 Bush (Ky.) 70 ; Treza- 
 86 111. 225 ; Severs v. Dodson, 53 N. J. venfc v. Terrell, 96 Tenn. 530, :j:5 S. W. 
 Eq. 633, 34 Atl. Rep. 7. Rep. 109 ; Miller v. Hilton, 8S .Mr. 429. 
 
 2 Cook v. Johnson, 12 N. J. Eq. 54. 34 Atl. Rep. 266. 
 
 3 See Gordon v. Reynolds, 114 111. 5 Young v. Heerrnans, 66 N. Y. 384 ; 
 133, 28 N. E. Rep. 455 ; Neuberger v. Fearn v. Ward, 65 Ala. 33 ; Van 
 Keim, 134 N. Y. 38, 31 N. E. Rep. 268; Wyck v. Seward, 18 Wend. (N. Y.) 
 Schreyerv. Scott, 134 U. S. 411, 10 S. 375, 383, and cases cited; Shontz v. 
 C. Rep. 579; Clement v. Cozart, 109 Brown, 27 Pa. St. 123; Bibb v. Free- 
 N. C 180, 13 S. E. Rep. 862. man, 59 Ala. 612; Cook v. Johnson, 
 
 "Thomson v. Hester, 55 Miss. 656. 12 N. J. Eq. 52; Hamet v. Dundass, 
 
 See Cansler v. Sallis, 54 Miss. 446 ; 4 Pa. St. 178 ; Jenkins v. Lockard, 66
 
 182 
 
 CONTINGENT CREDITORS. 
 
 90 
 
 uing liability to pay rent under a lease constitutes the 
 relationship of debtor and creditor. 1 It follows that the 
 person to whom the debtor is bound is a creditor. 2 A 
 wife is a creditor under 13 Eliz. c. 5, in a case where her 
 husband covenanted with trustees to pay her a sum of 
 money after his death. 3 A surety is a creditor from the 
 time the obligation is entered into, 4 or the bond signed ; 5 
 a person liable contingently as an accommodation in- 
 dorser is a creditor before the dishonor of the note ; 8 and a 
 warrantor, if at the date of the deed a paramount title 
 was outstanding, is, from the time of the conveyance, a 
 debtor to the warrantee. 7 A remainderman is a cred- 
 itor against whose claim a voluntary conveyance made 
 during the lifetime of the life tenant will be set aside. 8 
 A municipal corporation is, upon the issuance to the 
 proper officer of a tax warrant, a creditor within the 
 statute. 9 The date when the agreement or obligation 
 
 Ala. 381 ; Benson v. Benson, 70 Md. 
 253 ; Yardley v. Torr, 67 Fed. Rep. 
 857 ; Petree v. Brotherton, 133 Ind. 
 6!)."). 32 N. E. Rep. 300. 
 
 1 O'Brien v. Whigani, 9 App. Div. 
 (N. Y.) 113. 
 
 8 See Jackson v. Seward, 5 Cow. 
 (N. Y.) 67; Jackson v. Myers, 18 
 Johns. (N. Y.) 425. 
 
 a Rider v. Kidder, 10 Ves. 360. 
 
 4 Pennington v. Seel, 49 Miss. 525 ; 
 Howell v. Thompson, 95 Tenn. 396, 
 32 S. W. Rep. 309 ; Matter of Rea, 82 
 Iowa 231, 48 N. W. Rep. 78; Reel v. 
 Livingston, 34 Fla. 377, 16 So. Rep. 
 284 ; Humphrey v. Spencer, 36 W. Va. 
 11, 14 S. E. Rep. 410 ; cf. In re Reyn- 
 olds, 20 Fed. Cases, 615 ; Barnes v. 
 Summons, 128 Ind. 596, 27 N. E. Rep. 
 747. So held in the case of a surety 
 on a guardian's bond. Benson v. 
 Benson, 70 Md. 253. 
 
 '• Yeend v. Weeks, 104 Ala. 330, 16 
 So. Rep. 165. 
 
 6 Harnet v. Dundass, 4 Pa. St. 178. 
 
 1 Gannard v. Eslava, 20 Ala. 740 ; 
 Pennington v. Seal, 49 Miss. 525. It 
 is said in Severs v. Dodson, 53 N. J. 
 Eq. 637, 34 Atl. Rep. 7, that none of 
 the cases decide "that a contingent 
 liability will, per se, raise an irrefu- 
 table inference of fraud so as to in- 
 validate a conveyance made during 
 the continuance of such a condition 
 of affairs." 
 
 8 Soden v. Soden, 34 N. J. Eq. 115. 
 
 9 Stimson v. Wrigley, 86 N. Y. 332. 
 A judgment for costs accrues at the 
 time the judgment is rendered, and 
 not when the action is commenced, 
 as regards the question of whether 
 the claimant is an existing or subse- 
 quent creditor. Inhabitants of Pel- 
 ham v. Aldrich, 8 Cray (Mass.) 515 ; 
 Ogden v. Prentice, 33 Barb. (N. Y.) 
 160; Stevens v. Works, 81 Ind. 449.
 
 § 9° 
 
 CONTINGENT CREDITORS. 
 
 I8 3 
 
 came into existence governs 1 in determining the com- 
 plaining or attacking creditor's rights. As elsewhere 
 shown, a person whose claim arises from a tort,~ such as 
 libel or slander, 3 is a creditor. The date the tort or in- 
 jury was committed governs in determining the creditor's 
 status, where the conveyance was made in pursuance of a 
 fraudulent design to defeat the judgment which might 
 be recovered upon it. 4 In such case the transfer will be 
 set aside, if actual fraud is established. It is not enough 
 that the conveyance is constructively fraudulent. 5 So a 
 transfer to defeat a claim for deceit, 6 for usury penal- 
 ties, 7 breach of promise to marry, 8 seduction, 9 bastardy, 10 
 and assault and battery, 11 may be annulled. And a wife may 
 attack alienations intended to defeat claims for alimony. 12 
 
 1 Van Wyck v. Seward, 18 Wend. 
 (N. Y.) 375 ; Seward v. Jackson, 8 
 Co wen (N. Y.) 406. See Wooldridge 
 v. Gage, 68 111. 158 ; Stone v. Myers, 
 9 Minn. 309. 
 
 2 Post v. Stiger, 29 N. J. Eq. 558 ; 
 Scott v. Hartman, 26 N. J. Eq. 90 ; 
 Pendleton v. Hughes, 65 Barb. (N. Y.) 
 136; Barling v. Bishopp, 29 Beav. 417; 
 Shean v. Shay, 42 Ind. 375 ; Bongard 
 v. Block, 81 111. 186 ; Weir v. Day, 57 
 Iowa 87; Jackson v. Myers, 18 Johns. 
 (N. Y.) 425 ; Shontz \. Brown, 27 Pa. 
 St. 131 ; Harris v. Harris, 23 Gratt. 
 (Va.) 737 ; Tobie & Clark Mfg. Co. v. 
 Waldron, 75 Me. 472 ; Hepworth v. 
 Union Ferry Co., 62 Hun (N. Y.) 257, 
 16 N. Y. Supp. 692 ; Boid v. Dean, 48 
 N. J. Eq. 203, 21 Atl. Rep. 618. See 
 
 1 § 123. 
 
 3 Cooke v. Cooke, 43 Md. 522 ; Hall 
 v. Sands, 52 Me. 355. But see Fowler 
 v. Frisbie, 3 Conn. 320. 
 
 4 Miller v. Dayton, 47 Iowa 312; 
 Evans v. Lewis, 30 Ohio St. 11 ; Ford 
 v. Johnston, 7 Hun (N. Y.) 563 ; Hep- 
 worth v. Union Ferry Co. ,62 Hun (N. 
 Y.)257, 16 N. Y. Supp. 692. 
 
 6 Fuller v. Brown, 76 Hun (N. Y.) 
 559, 28 N. Y. Supp. 189. See Sanders 
 
 v. Logue, 88 Tenn. 355, 12 S. W. Rep, 
 722. 
 
 6 Miner v. Warner, 2 Grant (Pa.) 
 448. 
 
 I Heath v. Page, 63 Pa. St. 108. 
 
 8 Hoffman v. Junk, 51 Wis. 613, 8 
 N. W. Rep. 493 ; Thompson v. Rob- 
 inson, 89 Me. 56; McVeigh v. Rite- 
 nour, 40 Ohio St. 107. 
 
 9 Hunsinger v. Hofer, 110 Ind. 390, 
 11 N. E. Rep. 463. 
 
 10 Schuster v. Stout, 30 Kans. 530, 
 2 Pac. Rep. 642. Leonard v. Bolton, 
 153 Mass. 428, 26 N. E. Rep. 1118. 
 
 II Martin v. Walker, 12 Hun (N. Y.) 
 46. 
 
 12 Morrison v. Morrison, 49 N. H. 69; 
 Bouslough v. Bouslough, 68 Pa. St. 
 495; Turner v. Turner, 44 Ala. 437; 
 Dugan v. Trisler, 69 Ind. 553 ; Bailey 
 v. Bailey, 61 Me. 361 ; Livermore \ . 
 Boutelle, 11 Gray (Mass.) 217; ('has.' 
 v. Chase, 105 Mass. 385: Hinds v. 
 Hinds, 80 Ala. 225, 227, citing this 
 section; Foster v. Foster, 56 Vt. 546; 
 Stuart v. Stuart, 123 Mass. 370; Bur- 
 rows v. Purple, 107 Mass. 435 : Picket 
 v. Garrison, 76 Iowa 347, II X. W. 
 Rep. 38; Boog v. Boog, 78 Iowa 534, 
 43 N. W. Rep. 515.
 
 184 WHO ARE NOT CREDITORS. §91 
 
 In Pendleton v. Hughes, 1 the defendants, at the 
 date of the fraudulent alienation, had in their possession 
 a 5-20 U. S. bond belonging to plaintiff which they after- 
 ward converted. The court held that plaintiff was equi- 
 tably entitled to protection against the fraudulent trans- 
 fer to the same extent as though the defendants had been 
 indebted to her in that amount at the time of the fraudu- 
 lent alienation. 
 
 § 91. Who are not creditors. — In Baker v. Gilman, 2 the 
 court, speaking by Johnson, J., said that the sole object 
 of the statute " in declaring conveyances void, is to pro- 
 tect, and prevent the defeat of, lawful debts, claims or 
 demands, and not those which are unlawful, or trumped 
 up, and which have no foundation in law or justice, and 
 the verity of which is never established by any judgment 
 or by the assent of the person against whom they are 
 made. As against claims and demands of the latter class, 
 the statute does not forbid conveyances or assignments, 
 nor declare them void." So a party who is not a bona 
 fide creditor is not entitled to equitable relief on a cred- 
 itor's bill. 3 A pretended creditor whose claim is illegal, 4 
 or void as against public policy, 5 or barred by statute at 
 law, 8 or who is not concerned in the transfer, 7 or is estop- 
 ped by his knowledge and acquiescence, 8 cannot support 
 
 1 65 Barb. (N. Y.) 136. 8 Scholey v. Worcester, 4 Hun (N. 
 
 - 52 Barb. (N. Y.) 37. Y.) 302. See Olliver v. King, 8 De G. 
 
 3 Townsend v. Tuttle, 28 N. J. Eq. M. & G. 110 ; Phillips v. Wooster, 36 
 449. See §73. N. Y. 412. See § 402. Greene v. 
 
 4 Fuller v.Brown, 30 N. H. 861; Sprague Mfg. Co., 52 Conn. 330.' 
 Alexander v. Gould, 1 Mass. 165. See In Beaupie v. Noyes, 138 U. S. 401, 
 Walker v. Lovell, 28 N. H. 138; Tay- the court says : "That ground is thai 
 lor v. Van Deusen, 3 Gray Mass.) 498. there was evidence tending to show 
 
 I'.ruggerman v. Hocrr, 7 Minn, that t lie defendants acquiesced in and 
 
 337. assented to all that was done, and 
 
 •Edwardsv. M'Gee, 31 Mi-s 143. waived any irregularity in the mode 
 
 7 Morrison v. Atwell. <j Bosw. (N. in which the assignee conducted the 
 
 F.)508; Powers v. Graydon, 10 Bosw. business; and that the question 
 
 (N. Y. j 630. whether the defendants so acquiesced
 
 §§92,93 TRANSFER OF RIGHT TO SUE. 185 
 
 a creditor's action. A court of equity can only lend its 
 aid to enforce a judgment which could be enforced at 
 law, and the creditor must have clean hands. 
 
 § 92. Transfer of right to sue.— It may be here observed 
 that the right to avoid a fraudulent conveyance is not 
 personal to the then existing creditor ; his successors 
 and assigns may enforce the right. Thus the subsequent 
 purchaser of a pre-existing note may attack a transfer. 1 
 Campbell, J., says : 2 " No change in the ownership or the 
 form of the debt affects the right incident to the debt 
 to attack a conveyance fraudulent as to it." Davis, J., 
 observed : " The conveyance was void as against the 
 person intended to be defrauded, and his heirs, suc- 
 cessors, executors, administrators, and assigns, if their 
 actions, suits, debts, etc., were liable to be delayed or 
 hindered thereby. 3 " In Massachusetts it has been held 
 that a fraudulent conveyance may be avoided by an 
 assignee in insolvency, but not by a transferee of such 
 assignee, unless the assignee has first distinctly mani- 
 fested his election to avoid the transfer. 4 
 
 § 93- Voluntary alienations as to existing creditors. — At 
 first blush it would seem apparent that every voluntary 
 alienation of a debtor's estate, aside from, or ignoring 
 the question of intent, ought to be avoided as to existing 
 creditors. The debtor's property is sometimes character- 
 
 and assented with knowledge of all by agreement with other creditors, 
 
 the facts, and thereby waived their designed to prevent a sacrifice of the 
 
 right to treat the assignment as assigned property, by a disposal of it 
 
 fraudulent, was properly submitted to in the ordinary way, by the assignees." 
 
 the jury." See Eustis v. Bolles, 150 'Warren v. Williams, 52 Me. 349. 
 
 U. fl. 368 ; Clay v. Smith, 3 Pet. 411. 2 Cook v. Ligon, 54 M iss. 655. 
 
 In Rapalee v. Stewart, 27 N. Y. 314, 3 Warren v. Williams, 52 Me. 849. 
 
 the court says : "Here is not only a 4 Morgan v. Abbott, 148 Mass. 507, 
 
 waiver of any right to attack the as- 20 N. E. Rep. 165. Sec Freeland v. 
 
 signment for fraud, but a ratification Freeland, 102 Mass. 475 ; Tuite v 
 
 of it, by coming in and taking action, Stevens, 98 Mass. 305.
 
 1 86 VOLUNTARY ALIENATIONS. § 93 
 
 ized as the fund or evidence of means or stability upon 
 which the creditor relied in extending the credit, and it is 
 urged that, after the creditor's claim accrued, this fund 
 should not be depleted and allowed to pass into the hands 
 of persons who did not pay value for it to the detriment of 
 the creditor whose claim remains unpaid. Exactly how 
 to accomplish substantial justice in such cases to all 
 parties, and yet to give full scope and effect to the proper 
 presumptions and rules of law and evidence is not easily 
 determined. Shall such voluntary conveyance be declared 
 prima facie or absolutely void, or must the creditor 
 assume the burden of showing something more than that 
 the conveyance was voluntary? 
 
 Some of the confusion and uncertainty which has been 
 introduced into this subject in this country may be traced 
 to the discussion over the celebrated decision of Chan- 
 cellor Kent in the widely known case of Reade v. Liv- 
 ingston, 1 in which it was held that a voluntary marriage 
 settlement, after marriage, was of itself void as to existing 
 creditors. This case has been declared by an essayist 2 
 to be " the grandest monument of legal acumen and wide 
 and varied erudition which New York has ever produced," 
 and while it is conceded that the case was repudiated by 
 the courts of the very State which gave it birth, 3 it was 
 asserted that " unless indications are wholly delusive the 
 learned Chancellor was not more than a century in 
 
 '3 Johns. Ch. (N. -Y.) 481, 8 Am. where shown, the question of fraud is 
 
 Dec. 520 ; Lloyd v. Fulton, 91 U. S. made one of fact, and no conveyance 
 
 479, and cases cited. See Haston v. is considered fraudulent as against 
 
 Castner, 31 X. J. Eq. G97. creditors or purchasers solely on the 
 
 - Fraudulent Conveyances to Bona ground that it was not founded upon 
 
 Fide Purchasers, etc., by John Key- a valuable consideration. See Dygert 
 
 uold-, Esq., cited, supra. v. Bemerschnider, 32 N. Y. 636 ; Kain 
 
 3 Seward v. Jackson, 8 Cow. (N. Y.) v. Larkin, 131 N. Y. 300, 30 N. E. 
 
 406. By statue in New York, as else- Rep. 105.
 
 § 93 VOLUNTARY ALIENATIONS. 1 87 
 
 advance of his age." ' The English Court of Chancery 
 in Freeman v. Pope, 2 substantially acknowledged the 
 doctrine of this case and gave the following emphatic and 
 extreme illustration : If at the time of a voluntary settle- 
 ment, the settler had ,£100,000, and put £100 in the set- 
 tlement, and a creditor for say ^10, happened to be 
 unpaid in consequence of the settler losing his money in 
 the interval, that would be quite sufficient to set aside the 
 voluntary settlement;" and the doctrine of the case is 
 unreservedly followed in many American cases. 3 Salmon 
 v. Bennett, 4 a leading early case created an exception to 
 the rule set forth in Reade v. Livingston, and tends to 
 uphold voluntary conveyances to relatives as distin- 
 guished from strangers, where actual fraud is not found. 5 
 In New York the Revised Statutes expressly declare that 
 no conveyance shall be held fraudulent solely upon the 
 ground that it was not founded on a valuable consider- 
 ation. In that State it is declared that the burden to 
 prove that the deed left the grantor insolvent and with- 
 out property to pay his liabilities, rests upon the plain- 
 tiff. 6 In England it is provided by a recent statute, 56 
 
 1 See Doe d. Davis v. McKinney, 5 Emerson v. Bemis, 69 111. 540 ; Annul 
 
 Ala. 719 ; Foote v. Cobb, 18 Ala. 585 
 Gannard v. Eslava, 20 Ala. 732 
 Spencer v. Godwin, 30 Ala. 355 
 Crawford v. Kirksey, 55 Ala. 282 
 
 v. Annin, 24 N. J. Eq. 184; Richard- 
 son v. Rhodus, 14 Rich. Law (S. C.) 
 96 ; Clement v. Cozart, 109 N. C. 1 73, 
 13 S. E. Rep. 862 ; Jackson v. Lewis, 
 
 Early v. Owens, 68 Ala. 171 ; Cook v. 34 S. C. 1, 12 S. E. Rep. 560 ; Loehr v. 
 
 Johnson, 12 N. J. Eq. 51 ; Smith Murphy, 45 Mo. App. 519 ; Gardner v. 
 
 v. Vreeland, 16 N. J. Eq. 198 ; Kuhl Kleihke, 46 N. J. Eq. 90, 18 Atl. Rep. 
 
 v. Martin, 26 N. J. Eq. 60 ; Haston v. 457. 
 
 Castner, 31 N. J. Eq. 697 ; City Na- 4 1 Conn. 525. 
 
 tional Bank v. Hamilton, 34 N. J. Eq. 5 See§242. Foster v. Foster, 56 
 
 158 ; Aber v. Brant, 36 N. J. Eq. 116 ; Vt. 548 ; Lloyd v. Fulton, 91 V. S. 
 
 Fellows v. Smith, 40 Mich. 689 ; Mat- 479 ; Babcock v. Eckler, 24 N. Y. 623 ; 
 
 son v. Melchor, 42 Mich. 477. Gale v. Williamson, 8 M. & W. 405. 
 
 2 L. R. 9Eq. at p. 211. 6 Kain v. Larkin, 131 N. Y. 300, 30 
 
 3 See Crawford v. Kirksey, 55 Ala. N. E. Rep. 105 ; cf . Fuller v. Brown, 
 
 282 ; Spencer v. Godwin, 30 Ala. 355 ; 76 Hun (N. Y.) 557, 28 N. Y. Supp. 
 
 Hanson v. Buckner, 4 Dana (Ky.)251 ; 189.
 
 1 88 CONVEYANCES PRESUMPTIVELY FRAUDULENT. §94 
 
 and 57 Vict. ch. 21, that a voluntary conveyance, if made in 
 good faith, shall not be avoided under the statute of 
 Elizabeth. Thus do the principles of Twyne's case, 1 van- 
 ish from view. The burden imposed upon the creditor of 
 being forced to show facts tending to establish fraud in 
 addition, so to speak, to proof that the conveyance was 
 voluntary, certainly creates a feeling of unrest in the 
 courts, and in Smith v. Reid 2 the opinion sets forth the 
 familiar rule that a voluntary conveyance by one indebted 
 is presumptively fraudulent, while in the dissenting opin- 
 ion, Kain v. Larkin, 8 is referred to as establishing that 
 mere proof of the voluntary character of the conveyance 
 will not make out the creditor's case. 
 
 § 94. Such conveyances only presumptively fraudulent. — 
 If the majority rule is to be applied in determining this 
 conflict, or the cases are to be counted and not weighed, 
 then it must be conceded that a voluntary alienation by a 
 person who happens to be indebted at the time, is only 
 prima facie fraudulent. 4 In Smith v. Vodges, 5 Swayne, J., 
 said : " In order to defeat a settlement made by a hus- 
 band upon his wife, it must be intended to defraud existing 
 creditors, or creditors whose rights are expected shortly 
 
 1 See § 22. Warner v. Dove, 83 Md. 579 ; Babcock 
 
 2 134 N. Y. 575, 31 N. E. Rep. 1082. v. Eckler, 24 N. Y. 623 ; Greenfield's 
 
 3 131 N. Y. 300, 30 N. E. Rep. 105. Estate, 14 Pa. St. 489 ; Clark v. De- 
 1 See note to Jenkins v. Clement, 14 pew, 25 Pa. St. 509; Pomeroy v 
 
 Am Dec 705 : 1 'once v. Croan, 51 Bailey, 43 N. H. 118 ; Dewey v. Long, 
 
 In<l. 336 : Gwyer v. Figgins, 37 Iowa 25 Yt. 564 ; Lloyd v. Fulton, 91 U. S. 
 
 517; Wilson v. Kohlheiru, 40 Miss. 485; Hoarie v. Price, 31 Wis. 82; 
 
 346; Bank of U.S. v. Housman, 6 Blake v, Boisjoli, 51 Minn. 296, 53 N. 
 
 Paige (N. Y.) 526; Eolden v. Burn- W. Rep. 037; Emerson v. Opp. 139 
 
 ham, 63 X. Y. 71 ; Eigleberger v. Ind. 27, 38 N. E. Rep. 330. The 
 
 Kibler, 1 Hill's Ch. (S. C.) 113, 26 voluntary donee " is entitled only to 
 
 Am. Dec. 192: Heiatt v. Barnes, 5 that which his donor could honestly 
 
 Itana (Ky.)220; Koater v. Hiller, 4 give." Adams' Equity, p. 149. See 
 
 Bradw. (111.) 21 ; Fellows v. Smith, Green v. Givan, 33 N. Y. 343. 
 10 Mich. 691 ; Grant v. Ward. G4 Me. 5 92 U. S. 183; Schreyer v. Scott, 
 
 239 ; French v. Holmes, 07 Me. 190 ; 134 U. S. 411, 10 S. C. Rep. 579.
 
 §95 EVIDENCE OF SOLVENCY. 1 89 
 
 to supervene, or creditors whose rights may and do so super- 
 vene ; the settler purposing to throw the hazards of busi- 
 ness in which he is about to engage upon others, instead 
 of honestly holding his means subject to the chance of 
 those adverse results to which all business enterprises are 
 liable." 1 " The sentiment of these cases," says Mr. Free- 
 man, 2 is well expressed in Lerow v. Wilmarth, 3 by Chief- 
 Justice Bigelow : 'We do not wish to be understood as 
 giving our sanction to the doctrine that a voluntary con- 
 veyance by a father for the benefit of his child is per se 
 fraudulent as to existing creditors, although shown not to 
 have been fraudulent in fact, and is liable to be set aside, 
 because the law conclusively presumes it to have been 
 fraudulent, and shuts out all evidence to repel such pre- 
 sumption. The better doctrine seems to us to be that 
 there is, as applicable to voluntary conveyances made on 
 a meritorious consideration, as of blood and affection, no 
 absolute presumption of fraud which entirely disregards 
 the intent and purpose of the conveyance, if the grantor 
 happened to be indebted at the time it was made, but 
 that such a conveyance under such circumstances affords 
 only prima facie or presumptive evidence of fraud which 
 may be rebutted and controlled.' " 4 
 
 §95. Evidence of solvency.— The Supreme Court of 
 Maine regard it as established law that mere indebted- 
 ness is not sufficient to render a voluntary conveyance 
 void. Consequently it was said that a man, though 
 
 'Citing Sexton v. Wheaton, 8 11 Wheat. 199 ; Verplani v. Sterry, 
 
 Wheat. 229 : Mullen v. Wilson, 44 Pa. 12 Johns. (N. Y.) 536, 559 . Seward v. 
 
 St. 413 ; Stileman v. Ashdown, 2 Atk. Jackson, 8 Cow. (N. Y.) 40f> ; I >unlap 
 
 481. v. Hawkins, 59 N. Y. 846 ; Walter v. 
 
 2 See note to Jenkins v. Clement, Lane, 1 MaeAr. (D. C.) 284 ; Parish v. 
 
 14 Am. Dec. 705. Murphree, 13 How. 92; Moritz \. 
 
 3 9 Allen (Mass.) 386. Hoffman, 35 111. 553; Koster v. Bil- 
 
 4 See Hinde's Lessee v. Longworth, ler. 4 111. App. 24.
 
 193 EVIDENCE OF SOLVENCY. § 95 
 
 indebted, may make a valid gift. 1 Mere insolvency will 
 not, of course, render a deed fraudulent provided it was 
 made with the sole view of paying a debt due to the 
 grantee. 2 As a general rule if the donor is solvent, and 
 has, after making the gift, sufficient assets remaining to 
 satisfy his creditors, the gift will be upheld. 3 Subsequent 
 insolvency will not generally render it invalid. 4 In such 
 cases the creditors' trust fund, so called, cannot be said 
 to have been depleted by the alienation. If their claims 
 remain unsatisfied it is due to some subsequently accruing 
 cause. Judge Lowell, in Pratt v. Curtis, 5 derives the 
 following propositions from the cases: "(i). A volun- 
 tary conveyance to a wife or child is not fraudulent per se ; 
 but it is a question of fact in each case whether a fraud 
 was intended. (2). Such a deed, made by one who is 
 considerably indebted, is prima facie fraudulent, and the 
 burden is on him to explain it. (3). This he may do by 
 showing that his intentions were innocent, and that he 
 had abundant means, besides the property conveyed, to 
 pay all his debts." 6 The rule may be summed up to the 
 effect that the gift, conveyance, or settlement will be 
 upheld u if it be reasonable, not disproportionate to the 
 
 1 French v. Holmes, 67 Me. 198 ; Rose v. Colter, 76 Ind. 590 ; Evans v. 
 
 Stevens v. Robinson, 72 Me. 381 ; Hamilton, 56 Ind. 34 ; Sherman v. 
 
 Langhton v. Harden, 68 Me. 212. See Hogland, 54 Ind. 578 ; Pence v. 
 
 McFadden v. Mitchell, 54 Cal. 628 ; Croan, 51 Ind. 336. 
 
 Patterson v. McKinney, 97 111. 47 ; 6 2 Lowell 90. 
 
 Hinde's Lessee v. Longworth, 11 6 See also note to Jenkins v. Cle- 
 
 Wheat. 213 ; Merrell v. Johnson, 96 ment, 14 Am. Dec. 707 ; Herring v. 
 
 111. 230. Richards, 1 McCrary 574. The ques- 
 
 1 Fuller v. Brewster, 53 Md. 362. tion whether the funds left were 
 
 See Copis v. Middleton 2 Madd. 410; ample to pay existing indebtedness is 
 
 Phettiplace v. Sayles, I Mason 312; for the. jury. Clement v. Cozart, 112 
 
 Eardey v. Green, 12 Beav. 182 ; At- N. C. 412, 17 S. E. Rep. 486, and the 
 
 wood v. Impson, 20 N. J. Eq. 150. proof to rebut the presumed fraudu- 
 
 3 Stewart v. Rogers, 25 Iowa, 395 ; lent intent must be clear and satis- 
 (iridley v. Watson, 53 111. 193; Win- factory. Snyder v. Free, 114 Mo. 
 Chester v. Charter, 97 Mass. 140. 360; 21 S. W. Rep. 847. 
 
 4 Dunn v. Dunn, 82 Ind. 43. See
 
 §95 EVIDENCE OF SOLVENCY. [9] 
 
 husband's means, taking into view his debts and situation, 
 and clear of any intent, actual or constructive, to defraud 
 creditors." 1 Dunlap v. Hawkins 2 embodies an important 
 statement of the law upon this subject. The principle is 
 asserted that a creditor cannot impeach a conveyance 
 founded on natural love and affection, free from the impu- 
 tation of fraud, when the grantor had, independent of the 
 property granted, an ample fund 'to satisfy his creditors. 3 
 Allen, J., in the course of the opinion, said : " By proving 
 the pecuniary circumstances and condition of the grantor, 
 or him who pays for and procures a grant from others, his 
 business and its risks and contingencies, his liabilities and 
 obligations, absolute and contingent, and his resources 
 and means of meeting and solving his obligations, and 
 showing that he was neither insolvent nor contemplating 
 insolvency, and that an inability to meet his obligations 
 was not and could not reasonably be supposed to have 
 been in the mind of the party, is the only way by which 
 the presumption of fraud, arising from the fact that the 
 conveyance is without a valuable consideration, can be 
 repelled and overcome, except as the party making or 
 procuring the grant may, if alive, testify to the absence 
 of all intent to hinder, delay, or defraud creditors." And 
 in Parish v. Murphree, 4 the court observed : " To hold 
 that a settlement of a small amount, by an individual in 
 independent circumstances, and which, if known to the 
 public, would not affect his credit, is fraudulent, would be 
 a perversion of the statute." In Carpenter v. Roe, 5 the 
 
 •See Herring v. Richards, 1 Mc- Paige (N. Y.) 526 ; Fox v . Moyer, 54 
 
 Crary, 574. N. Y. 125 ; Van Wyck v. Seward, 6 
 
 2 59 N. Y. 346; Carr v. Breese, 81 Paige (N. Y.) 62; Jackson v. Miner, 
 
 N. Y. 588; Jencks v. Alexander.il 101 111.554: Rogers v. Yerlander, 30 
 
 Paige (N. Y.) 619. W. Va. 619, 5 S. E. Rep. 817. 
 
 3 See Jackson v. Post, 15 Wend. (N. 4 13 How. 98. 
 
 Y.) 588 ; Phillips v. Wooster, 36 N. Y. 6 10 N. Y. 227. 
 412 ; Bank of U. S. v. Housman, 6
 
 I92 EVIDENCE OF SOLVENCY. § 95 
 
 New York Court of Appeals held that, to invalidate a 
 voluntary conveyance, belief by the debtor as to his 
 insolvency was not absolutely necessary; it was sufficient 
 if his solvency was contingent upon the stability of the 
 market in the business in which he was engaged. In 
 other words, a debtor has not the right to make voluntary 
 alienations so as to leave himself in a condition in which 
 he hazards the rights of creditors on the contingency of a 
 fluctuating market. In Cole v. Tyler, 1 the court say : 
 " It was at one time the rule that a voluntary conveyance 
 by one indebted at the time was fraudulent, as a matter 
 of law, towards his creditors. No evidence was allowed 
 to rebut the presumption of fraud. 2 This rule was sub- 
 sequently deemed to be too severe by the courts, and the 
 less stringent rule was adopted that, while a conveyance 
 by a person indebted was presumptively or prima facie 
 fraudulent, the presumption might be rebutted by proof 
 to the contrary. 3 This presumption, however, is not to 
 be overthrown by mere evidence of good intent, or gen- 
 erous impulses or feelings. It must be overcome by 
 circumstances showing on their face that there could have 
 been no bad intent, such as that the gift was a reasonable 
 provision, and that the debtor still retained sufficient 
 means to pay his debts. He can no more delay his 
 creditors by such voluntary conveyance than he can 
 actually defraud them." 4 The statutory rule in New 
 York that lack of consideration alone will not suffice to 
 overturn a conveyance, and that other facts must be 
 shown, is not to be overlooked. 5 
 
 1 65 N. Y. 78. Babcock v. Eckler, 24 N. Y. 623 ; Dy- 
 
 2 Reade v. Livingston, 3 Johns. Oh. gert v. Remerschnider, 32 N. Y. 648 ; 
 (N. Y.) 481. See Kain v. Larkin, 131 Curtis v. Fox, 47 N. Y. 300. 
 
 N. Y. 300, 30 N. E. Rep. 105. See 5 Kain v. Larkin, 131 N. Y. 300, 30 
 
 nls.. § 93. N. E. Rep. 105 ; Smith v. Reid, 134 N. 
 
 3 Seward v. Jackson, 8 Cow. 406. Y. 581, 31 N. E. Rep. 1082. 
 
 4 Carpenter v. Roe, 10 N. Y. 230 ;
 
 CHAPTER VI. 
 
 SUBSEQUENT CREDITORS. 
 
 § 96. ) Fraud upon subsequent cred- 
 
 97. f itors. 
 
 98. Proof of intent. 
 
 99. Conveyance by embarrassed 
 
 debtor. 
 
 100. Placing property beyond the risk 
 
 of new ventures or specula- 
 tions. 
 
 101. Convevances avoided. 
 
 § 102 
 
 Conveyances not considered 
 fraudulent. 
 
 103. Subrogation of subsequent cred- 
 
 itors. 
 
 104. Subsequent creditors sharing 
 
 with antecedent creditors. 
 
 105. Mixed claims accruing prior and 
 
 subsequent to alienation. 
 
 106. Creditors whose claims accrued 
 
 after notice of alienation. 
 
 § 96. Fraud upon subsequent creditors. — The great prac- 
 tical distinction between existing or antecedent creditors 
 and subsequent creditors in most of the States is, that a 
 voluntary alienation is usually considered, as to the former, 
 presumptively fraudulent, while as to the latter the burden 
 of proving an intention to commit a fraud, or the existence 
 of a secret trust or reservation, rests upon the creditor. 
 Generally speaking, subsequent creditors must elicit facts 
 showing contemplation of future indebtedness by the 
 insolvent, 1 or future schemes of fraud. 2 Voluntary deeds, 
 
 1 See Todd v. Nelson, 109 N. Y. 327, 
 16 N E. Rep. 360 ; Teed v. Valentine, 
 65 N. Y. 474 ; Savage v. Murphy, 34 
 N. Y. 508; McClaugherty v. Morgan, 
 36 W. Va. 191, 14 S. E. Rep. 992; 
 Thompson v. Crane, 73 Fed. Rep. 327: 
 Horbach v. Hill, 112 IT. S. 114, 5 S. 
 C. Rep. 81 ; Schreyer v. Scott, 134 U. 
 S. 405 ; 10 S. C. Rep. 579 : Neuburger 
 v Keim. 134 N. Y. 38, 31 N. E. Rep. 
 268; Petree v. Brotherton, 133 Ind. 
 692, 32 N. E. Rep. 300: Buckley v. 
 Duff, 114 Pa. St. 59), 8 Atl. Rep. 188 ; 
 Eames v. Dorsett, 147 111. 540, 35 N. E. 
 
 13 
 
 Rep. 735 ; Hagerman v. Buchanan, 
 45 N. J. Eq. 292, 17 Atl. Rep. 946 ; 
 Craft v. Wilcox, 102 Ala. 378, II So. 
 Ken. 658; Ditman v. Raule, 124 Pa. 
 St. 225, 16 Atl. Rep. 819 : Bluthenthal 
 v. Magnus, 97 Ala. 530, 13 So. Rep. 7 ; 
 Marshall v. Roll, 139 Pa. St. 399, 20 
 Atl. Rep. 999. 
 
 2 Horbach v. Hill. 112 U. S. 111. 1 1!». 
 5 S. C. Rep. 81 : Schreyer v. Scott, 134 
 U. S. 411. 10 S. C. Rep. •">:'.»: Bilton v. 
 Morse, 75 Me. 258; Neuberger v. 
 Keim, 134 N. Y. 35, 31 N. E. Rep. 268 ; 
 Burton v. Platter, 53 Fed. Rep. 901.
 
 194 
 
 FRAUD UPON SUBSEQUENT CREDITORS. 
 
 §96 
 
 it should be remembered, are ordinarily invalid or liable 
 to attack only at the suit of antecedent creditors, 1 and the 
 absence of evidence showing fraud in the transaction will 
 usually defeat the actions of subsequent creditors.- As 
 we shall presently see there is not the same presumption 
 to aid the latter class. 3 A specific intent to defraud subse- 
 quent creditors will manifestly avoid the transfer as to 
 them. 4 In the absence of proof of such an intent the 
 transaction will stand. 5 Chancellor Kent, in his cele- 
 brated judgment pronounced in Reade v. Livingston, 6 a 
 case already noticed, said : " The cases seem to agree that 
 the subsequent creditors are let in only in particular cases ; 
 as where the settlement was made in contemplation of 
 future debts, or where it is requisite to interfere and set 
 aside the settlement in favor of the prior creditor." ' 
 Judge Story observed: "Where the settlement is set 
 aside as an intentional fraud upon creditors, there is strong 
 reason for holding it so as to subsequent creditors, and to 
 
 1 Uncle's Lessee v. Lonywortli, 11 
 Wheat. 211; Sexton v. Wheaton, 8 
 Wheat. 229, 252, 1 Am. Lea. Cas. 17; 
 Loeschigk v. Addison. 4 Abb. X. S. 
 (N.Y.)210, affi'd51 X.Y. 000; Metropo- 
 lite Bank v. Rogers, 47 Fed. Rep. 
 lis. See § s(), and Chap. V. 
 
 Ford 1 . Johnston, 7 Hun (N. V. I 
 568; Dygert v. Remerschnider, 82 X. 
 Y. 010; Cole v. Varner, 31 Ala. ','44 ; 
 Jackson v. Plyler, 38 S. C. 196, 17 s. 
 E. Rep. 255. 
 
 Herring v. Richards, 1 McCrary, 
 :.71 : Barrett v. Nealon, 110 Pa. St. 
 177, 12 Atl. Rep. 861. In Jones v. 
 Light, si; Me. 442, 30 Atl. Rep. 71, the 
 court says : "If the transaction is 
 actually fraudulent againsl any 
 creditor, any and all creditors may 
 impeach and resist it. ami are entitled 
 
 to the aid of the law in appropriating 
 the property , fraudulently com eyed, 
 
 1.. the paymenl of 1 heir debts. The 
 
 uniform construction of that statute 
 includes subsequent as well as exist- 
 ing creditors." See Wit/, v. Osburn, 
 83 Va. 229. 'J S. E. Rep. 33; Link v. 
 Denny, 75 Va. 00:5. 
 
 4 McPherson v. Kingsbaker,22Kan. 
 646; United state- v. Stiner, 8 Blatchf. 
 544; Candee v. Lord. 2 N. Y. 'J7.j ; 
 Anon. 1 Wall. Jr. lb: ; Horn v. 1: 
 •jo Ga. 223 ; Black v. Nease, 37 l'a. St. 
 433 : Johnston v. Zane. 11 Gratt. (Va.) 
 552 : Day v. Cooley, II s Mass. 524 ; 
 Plimpton v. Goodell, 1 13 Mass. 365, 
 N. E. Rep. 791 ; Leonard v. Bolton, 
 i:.3 Mass. 431. 26 N. E. Rep. His. 
 
 Teed v. Valentine, 65 N. Y. 474, 
 and cases cited ; Bouquet v. Heyman, 
 50 N. .1. Eq. 114, '21 Atl. Rep. 266. 
 
 •■:; Johns. Ch. (N. Y.) 10;. See 
 
 Chap. V. 
 
 : See Walter v. Lane, 1 MacAr. (D. 
 ■ 27o.
 
 § 9 6 FRAUD UPON SUBSEQUEN1 CREDITORS. [95 
 
 let them into the full benefit of the property." 1 In 
 Savage v. Murphy, 2 it appeared that the judgment-debtor 
 was engaged in an extensive business on credit, in which 
 he was considerably indebted, and that he stripped himself 
 of the title to all his property by transfer to his wife and 
 children for a merely nominal pecuniary consideration, 
 without any visible change of possession, and with the 
 intent to contract and continue a future indebtedness in 
 his business on the credit of his apparent ownership of the 
 property transferred, and to avoid payment of his debts. 
 After the transfer he continued in business, making new 
 purchases on credit, and using part of the avails of each 
 successive purchase to pay the indebtedness then existing, 
 during a period of about ten months, at the end of which 
 time he failed, owing debts thus contracted amounting to 
 $3,500. The court, upon these facts, held that it was clear 
 that the transfer thus made was fraudulent and void as 
 against subsequent creditors. The design to obtain a 
 credit after the conveyance by means of the continued 
 possession and apparent ownership of the property, which 
 the debtor thus placed beyond the reach of those who 
 might give him future credit, was plainly fraudulent. The 
 conclusion of fraud was not repelled by the circumstance 
 that the debts owing by him at the time of the transfer 
 were paid with the proceeds of credit subsequently 
 acquired by the means already stated. The indebted- 
 ness then existing was merely transferred, not paid, and 
 the fraud was as palpable as it would have been if the 
 
 'See also Ede v. Knowles, 2 Y. & 109 N. Y. 327. 16 X. E. Rep. 360: 
 
 C. N. R. 172-178, cited in Story's Eq. Neuberger v. Eeim, l-l N. Y. 38, 
 
 Jur. § 361, n.; Dewey v. Moyer, 72 N. 31 N. E. Rep. 268 ; Truesdell v. Sarles 
 
 Y. 76; May v. State Nat. Bank. 59 Ark. 10-1 N. Y. 161, 10 X. E. Rep. 139, and 
 
 614, 28 S. W. Rep. 431. cases cited. 
 
 2 34 N. Y ."KIN. See Todd v. Nelson,
 
 196 
 
 FRAUD ri'ON Sl'I!SK(Jl'KNT CREDITORS. 
 
 97 
 
 debts remaining- unpaid were owing to the same creditors 
 to whom he was obligated at the time of the transfers. 1 
 
 ^ 97. — It ma)' be here observed that a fraudulent and 
 deceitful conveyance of property, made without valuable 
 consideration, and with intent to injure the rights or 
 avoid the debts of any other person, is invalid as to sub- 
 sequent creditors as well as to those who were creditors 
 at the time of the conveyance.' 2 In Parkman v. Welch, 3 
 Dewey, J., in speaking of the rights of subsequent credit- 
 ors, said : " This raises the question whether the effect 
 of the statute of 13 Eliz. c. 5, is to avoid conveyances 
 made upon secret trust and with fraudulent intent, as 
 well in favor of subsequent as previous creditors. On 
 
 this subject we apprehend the law is well settled 
 
 that a conveyance fraudulent at the time of making it, 
 might be avoided in favor of subsequent creditors." 4 In 
 
 1 See s. P. Carr v. Breese, 18 Hun 
 (N. Y.) 134, 1 Am. Insolv. Rep. 
 355. In Todd v. Nelson. 109 N. Y. 
 327, Peckham, J., said : "The theory 
 upon which deeds conveying the prop- 
 erty of an individual to some third 
 party have been set aside as fraudulent 
 in regard to subsequent creditors of 
 the grantor lias been that he has made 
 a secret conveyance of his property 
 while remaining in the possession and 
 seeming ownership thereof, and has 
 obtained credit thereby , while embark- 
 •ng in some hazardous business requir- 
 ing such credit, or the debts which he 
 has incurred wore incurred soon after 
 the conveyance, thus making the 
 fraudulent intent a natural and alniOSl 
 a accessary inference, and in this way 
 he has hern enabled to obtain the 
 property of others who were relying 
 upon an appearance which was wholly 
 delusive." See Schreyer v. Scotl L34 
 [ 3. 411. 10 s. C. Rep 579 
 
 • McLane v. Johnson, 43 Vt. 48. 
 
 See Clark v. French. 23 Me. 221 : ( !ar- 
 biener v. Montgomery (Iowa), 66 
 N. W. Rep. 900. 
 
 3 19 Pick. (Mass.) 237. 
 
 1 See Carpenter v. McClure, 39 Vt. 
 9. In Day v. Co., ley, lis Mass. 527, 
 the court observed: " It is well sett led 
 that if a debtor makes a conveyance 
 with the purpose of defrauding either 
 existing or future creditors, it may be 
 impeached by either class of creditors. 
 or by an assignee in insolvency or 
 bankruptcy who represents both. 
 Parknian v. Welch, 19 Pick. (Mass. | 
 231 : Thacher v. Phinney, 7 Allen 
 (Mass.) 1 It! : Winchester v. Charter, 
 12 .Mien (Mas.-.) 606 ; Wadsworth v. 
 Williams, 100 Mass. 126. As it was 
 
 proved in this case that the grantor 
 
 had an actual fraudulent design which 
 
 was participated in by the grantee, it 
 is immaterial whether the demand- 
 ants are to be regarded as subsequent 
 
 or exist inn' creditors as to Hie convey- 
 ance." See also Clement v. Cozart,
 
 §97 
 
 I'k M 1) I ['( iN SU;SE< 'I l.\ I CREDITORS. 
 
 197 
 
 Tony v. McGehee, 1 the rule; is recognized that a volun- 
 tary conveyance may be impeached by a subsequent 
 
 112 N. C. 412, 17 S. E. Rep. 486. In 
 some States a different rule prevails, 
 and a specific intent to def nun I credit- 
 ors must be found in order to a void 
 the deed as to them. Gardner v. 
 Kleinke, 46 N. J. Eq. 90, 18 Atl. 
 Rep. 459; cf. Ditmanv. Raule, 124 Pa. 
 St. 225, 16 Atl. Rep. 819; May v. 
 State Nat. Bank, 59 Ark. 614, 28 S. W. 
 Rep. 431 ; Fullington v. Northwestern 
 Importers' etc. Assoc. 48 Minn. 490, 
 51 N. W. Rep. 475. The question 
 whether such intent to defraud sub- 
 sequent creditors exists is for the 
 jury. Marshall v. Roll, 139 Pa. St. 
 399, 20 Atl. Rep. 999. 
 
 '38 Ark. 427 ; 1 Story's Eq. Jurisp. 
 § 361 ; Claflin v. Mess, 30 N. J. Eq. 
 211; Pope v. Wilson, 7 Ala. 690; 
 Smith v. Greer, 3 Humph. (Tenn.) 
 118 ; Reade v. Livingston, 3 Johns. 
 Ch. (N. Y.) 481. 
 
 Rights of subsequent creditors — 
 Laughton v. Harden. — The rights of 
 subsequent creditors are considered 
 and the general policy of the courts 
 in dealing with fraudulent transfers 
 learnedly discussed in Laughton v. 
 Harden, 68 Me. 208. The doctrine is 
 there asserted that a voluntary con- 
 veyance from father to son, made with 
 the intent to defraud creditors, may be 
 avoided as to such creditors without 
 allegations or proof that the grantee 
 participated in the fraudulent intent. 
 The court said: " The exact question 
 presented is this : Is a voluntary con- 
 veyance from father to son, made by 
 the grantor with an intent to defraud 
 subsequent creditors, void as to such 
 creditors, when there is no proof that 
 the grantee participated in that intent 
 when he received or accepted the (\t'o>\ ': 
 The statute of Elizabeth, c. 5, answers 
 the question in the affirmative. It 
 pronounces every conveyance, made 
 
 to hinder, delay,' or defraud creditors, 
 
 utterly void as against such creditors, 
 unless the estate shall he, • u| good 
 
 consideration, and bona fide, lawfully 
 conveyed to sucfa person,' not having 
 
 at the 1 inie ■ any manner of not ice ' of 
 such fraud. ( 'an it he said that this 
 estate was bona fide, 'law fulls ' con- 
 veyed, or that a grantee who pays no 
 consideration for land fraudulently 
 conveyed to him has ' no manner of 
 notice ' of the fraud ? lint this is not 
 all of the statute. It threaten- a pen- 
 alty against a party to such convey- 
 ance who, being privy and knowing 
 thereto, ' shall wittingly and willingly 
 put in use. avow, maintain, justify, 
 and defend the same,' as true and 
 bonafide and upon good consideration. 
 When a grantee in such a thvd he- 
 comes informed of the grantor's intent 
 does he not assist in executing that in- 
 tent by an endeavor to uphold and 
 maintain the deed? Is he not, in the 
 eye of the law. presumed to be a par- 
 ticipator in thefraud? Should not an 
 honest grantee repudiate the deed ? 
 The grantee, by the fraudulent acl of 
 his grantor, becomes the trustee or de- 
 positary of property which belongs to 
 the grantor's creditors. By attempt- 
 ing to withhold it from the creditors, 
 does not the grantee himself commil a 
 fraud? If innocent in the beginning, 
 does he not become guilty in the end? 
 The governing and acting intent was 
 the grantor's. Does not the grantee 
 endeavor to avail himself of it and 
 adopt it when he holdson tot he deed? 
 No other conclusion can be reached. 
 
 ( )f course it will not at tin- day he 
 
 questioned that any conveyance maj 
 he avoided by subsequent as well as 
 by prior creditors, if fraud wasbj such 
 conveyance meditated against subse- 
 quent creditors. W'vinanv. Brown,
 
 198 
 
 PROOF OF INTENT. 
 
 §98 
 
 creditor on the ground that it was made in fraud of exist- 
 ing creditors; but, to be successful, the subsequent 
 creditor must show either that actual fraud was intended, 1 
 or that there were debts still outstanding, which the 
 grantor owed at the time it was made." 
 
 § 98. Proof of intent. — The subject of the intent of the 
 parties to an alleged fraudulent transfer will be considered 
 presently. 3 Speaking of the sufficiency of the evidence of 
 the intent to defraud subsequent creditors, Johnson, J., 
 said: 4 "Upon the question of fraudulent intent, or 
 whether the conveyance is fraudulent in fact, as to subse- 
 quent creditors, it is proper to consider the circumstances 
 of its being voluntary, and the party indebted at the 
 time ; and if additional circumstances connected with 
 those two be sufficient to show fraud in fact, it is void as 
 to subsequent creditors. It is not necessary that there 
 
 50 Me. 139 ; Bailey v. Bailey, 61 Me. 
 361 . Any other view of this question 
 than the one taken by us would permit 
 ami encourage most iniquitous frauds 
 upon the pari of badly disposed debt- 
 ors. A man might convey all his 
 property to his wife or minor children 
 upon the eve of an expected bank- 
 ruptcy, and, on account of Ins un- 
 doubted credit and apparent posses- 
 sion of means and property, be en- 
 abled to create a very great amount 
 of subsequent indebtedness. How 
 could a creditor show thai the wife. 
 and a fortiori, that the young minor 
 children knew of the grantor's fraud, 
 unless the knowledge can he imputed 
 to them under such circumstances as 
 a necessary implication of law ? It 
 would tic unnatural for a debtor's 
 wife and children to believe him to 
 lie a di-honest man. and uncommon 
 for then) to know much of his busi- 
 ness affairs." 
 
 ' Schreyer v. Scott 134 U. S. 111. 
 10 S. C. Rep. 579: Horbach v. Hill. 
 112 U. S. 144. 149. 5S. C Rep. 81 : 
 Neuberger v. Keim, 134 N. Y. 38, 31 
 N. E. Rep. 268. 
 
 • In Day v. Cooley, 1 is Maes. 527. 
 
 the court says: " It is well settled 
 
 that if a debtor makes a conveyance 
 with the purpose of defrauding either 
 existing or future creditors, it may 
 be impeached by either class of 
 creditors, <>r by an assignee in in- 
 solvency or bankruptcy who repre- 
 sents both. Parkman v. Welch, 19 
 Pick. 231 . Thacher v. Phinney, 7 
 Allen. 146; Winchester v. Charter, 
 12 Allen, 606; Wadsworth v. Wil- 
 liams. 100 .Mass. 126." 
 See Chap. XIV. 
 1 Rose v. Brown, 11 W. Va. 134. 
 
 See Kanawha Valley Hank v. Wilson, 
 25 W. Va. 242: Hurt v. Timmons. 29 
 W. Va.453, 2 S. E. Rep. 780.
 
 § 98 PROOF < IF INI ENT. 
 
 should be direct proof to show the fraud ; it is to be 
 legally inferred from the facts and circumstances ol the 
 case, where those facts and circumstances are of such 
 a character as to lead a reasonable man to the conclusion 
 that the conveyance was made with intent to hinder, delay, 
 or defraud existing or future creditors. 1 Where such 
 actual intent to defraud future creditors is proved it is 
 no defense to the action that the debtor may have in his 
 hands at the time property sufficient to pay all existing 
 debts. 3 Folger, J., delivering the opinion of the New 
 York Court of Appeals in Shand v. Hanley, 3 observes 
 upon this subject that " there is no difference in result, as 
 there is no difference in the intention to produce; the 
 result, between a transfer of property to defraud a creditor 
 existing at the time, and a creditor thereafter to be 
 made." 4 Some of the re-enactments of the statute of 
 Elizabeth mention subsequent creditors which the Eng- 
 lish statute does not do. 5 A conveyance intended to 
 defraud creditors is voidable not only as to existing but 
 as to future creditors. 6 The intent must be mutual. 
 Marriage, as we shall elsewhere see, is a valuable consid- 
 eration which is much respected in the law, and an 
 ante-nuptial settlement, though made by the settler with 
 the design of defrauding his creditors, will not be annulled 
 in the absence of the clearest proof of participation in 
 the fraud on the part of the wife. 7 
 
 1 See Carpenter v. Roe, 10 N. Y. Y.) 586. See Case v. Phelps, 39 N. Y. 
 227 ; Larkin v.McMullin, 49 Pa. St. 29. 164 ; Carr v. Breese, 81 N. Y. 584; 
 
 2 Dosche v. Nette, 81 Tex. 2V,7>. 10 Thomson v. Dougherty, L2 S. .V R. 
 S. W. Rep. 1018. (Pa.) 448; Lockhard \. Beckley, 10 
 
 3 71 N. Y. 319. 82> ; Matter of W. Va. 87; Rogers v. Verlander, 30 
 Brown,!'.!) Hun (N. V.) 27; Case v. W. Va. 619, 5 S. E. Rep. 847; May v. 
 Phelps, 39 N. Y. 164. Slate Xat. Bk. 59 Ark. 614, 28 S. W. 
 
 'See Mullen v. Wilson. 44 Pa. St. Rep. 131. 
 
 41G. Trewit v. Wilson. 103 t". S 32 
 
 B May v. State Nat. Bk. 5!) Ark. G14, See Burton v. Platter, ■".:: Fed. Rep 901. 
 
 28 S. W. Rep. 433. See Chap. XX. 
 
 6 Patridge v. Stokes, 66 Barb. (N.
 
 200 CONVEYANCE BY EMBARRASSED DEBTOR. §99 
 
 ii 99. Conveyance by embarrassed debtor. — In Wallace v. 
 Penfield, 1 it appeared that the debtor, who was somewhat 
 indebted at the time, made a voluntary settlement upon 
 his wife, by causing the title to the lands in question to be 
 taken in her name, with the intention of immediately build- 
 ing upon and improving the land and using it as a perma- 
 nent residence for himself and family. It was shown by 
 a preponderance of evidence that when the settlement was 
 effected, and during the period the land was being built 
 upon and improved, the debtor had property which cred- 
 itors could have reached, exceeding in value his indebted- 
 ness by several thousand dollars, and was engaged in an 
 active business with fair prospects. All the creditors whose 
 claims existed at the date of the settlement, or during the 
 period when the debtor was making expenditures for 
 improvements, had been fully paid and discharged. The 
 plaintiff's claim accrued subsequently. The Supreme 
 Court of the United States very properly decided that 
 these facts were entirely consistent with an honest pur- 
 pose to deal fairly with any creditors the debtor then had, 
 or might thereafter have, in the ordinary course of his 
 business, and that neither the conveyance to the wife, nor 
 the withdrawal of the husband's means from his business 
 for the purpose of improving the land settled upon the 
 wife, had the effect to hinder or defraud his then existing 1 
 or subsequent creditors. In Pepper v. Carter, 2 the 
 Supreme Court of Missouri said : " Some would make an 
 indebtedness per sc evidence of fraud against existing 
 creditors ; others would leave every conveyance of the 
 kind to be judged by its own circumstances, and from 
 them infertile existence or non-existence of fraud in each 
 
 1 106 U. S. 260, 1 S. C. Rep. '210. v. Scott, 134 U. S. 400. 10 S. ( !. Rep. 
 
 Where a husband acquires property 579. 
 
 in his own name by the use of the Ml Mo. 543. See Can - v. Breese, 
 
 separate property of the wife, a trans- 81 N. Y. 584; Schreyer v. Scott, 134 
 
 1.1 to her is urn voluntary. Schreyer U. S. 419, 10 S. C. Rep. 579.
 
 §99 CONVEYANCE r>\ EMBARRASSED DEBTOR. 201 
 
 particular transaction. Without determining the ques- 
 tion as to existing creditors, we may safely affirm that all 
 the cases will warrant the opinion that a voluntary con- 
 veyance as to subsequent creditors, although the party be 
 embarrassed at the time of its execution, is not fraudulent 
 per se as to them ; but the fact, whether it is fraudulent or 
 not, is to be determined from all the circumstances. 1 do 
 not say that the fact of indebtedness is not to weigh in 
 the consideration of the question of fraud in such cases, 
 but that it is not conclusive." The language of this case 
 is quoted approvingly by the same court in the later 
 case of Payne v. Stanton, 1 where it is said : " The doc- 
 trine is well settled that a voluntary conveyance by a 
 person in debt is not, as to subsequent creditors, fraudu- 
 lent per se. To make it fraudulent as to subsequent 
 creditors, there must be proof of actual or intentional 
 fraud. As to creditors existing at the time, if the effect 
 and operation of the conveyance are to hinder or defraud 
 them, it may, as to them, be justly regarded as invalid, 
 but no such reason can be urged in behalf of those who 
 become creditors afterwards." These cases in Missouri 
 are quoted from at length, and declared to be controlling, 
 by the United States Supreme Court in Wallace v. Pen- 
 field. 2 In the latter case, however, the facts proved and 
 found by the court expressly repel the idea that the 
 debtor was embarrassed or insolvent when the settlement 
 was made ; and the decision can scarcely be regarded as 
 fully approving Payne v. Stanton and similar cases to the 
 effect that an embarrassed debtor may make a voluntary 
 conveyance which will be upheld against subsequent 
 creditors. Some of these Missouri cases are at least 
 dangerously near the border line. The court, in Payne 
 
 '59 Mo. 159. See Boatmen's Sav- 515; Loehr v. Murphy, 45 Mo. App. 
 ings Bank v. Overall, 16 Mo. App. 524. 
 
 -' 106 U. S. 260, IS i. Rep 216.
 
 202 PLACING PROPERTY BEYOND RISK. §IOO 
 
 v. Stanton, draws the distinction between existing and 
 subsequent creditors, and says that the conveyance 
 might hinder, delay, and defraud the former, " but no such 
 reason can be urged in behalf of those who become credit- 
 ors afterwards." This, we respectfully urge, is attaching 
 undue importance to the exact date or period of time 
 when the creditor's claim accrued. The embarrassed 
 debtor, under this rule, might voluntarily alienate the mass 
 of his property, then secure loans or incur obligations to 
 creditors, whose claims would thus be subsequent to the 
 voluntary conveyance, and with the money thus acquired 
 liquidate the obligations existing when the conveyance 
 was effected. The embarrassment of the debtor when the 
 transfer was made calls into being the claims of, and obli- 
 gations to, the new creditors ; the deficit then existed, and 
 the liability has been merely transferred to new parties, 
 while the debtor's embarrassed estate has been further 
 crippled or rendered hopelessly insolvent by the voluntary 
 alienation. It seems to follow that the safer and more 
 prudent rule would be to hold that no voluntary convey- 
 ance by an embarrassed debtor should be upheld against 
 creditors, whether their claims accrued prior or subsequent 
 to the transfer. 
 
 § ioo. Placing' property beyond the risk of new ventures or 
 speculations — This brings us to the most important 
 branch of the subject, viz., the effect of conveyances, gifts 
 and settlements made to avoid the risks of losses likely to 
 result from new business schemes. To illustrate, a baker 
 who had been carrying on business for some years, being 
 about to purchase a grocery business, which he intended to 
 carry on together with his own trade, made a voluntary set- 
 tlement of nearly the whole of his property upon his wife 
 and children. He then purchased the grocery business, 
 and having lost money sold it, but continued in business as a 
 baker. Three years after the settlement he filed a liquida-
 
 § IOO PLACING PROPERTY BEYOND RISK. 203 
 
 tion petition. The court held that independently of the 
 question whether he was solvent at the date of the settle- 
 ment, it was voidable as against the trustee in liquidation, 
 under the stat. 13 Eliz. c. 5, on the ground that it was e\ i- 
 dently executed with the view of putting the settler's prop- 
 erty out of the reach of his creditors in case he should fail in 
 the speculation on which he was about to enter, in carrying 
 on a new business of which he knew nothing. 1 If a settle- 
 ment is made " on the eve of a new business, and with a view 
 of providing against its contingencies, it is as unavailing 
 against new creditors as against old ones." 2 This same 
 general principle was involved in Case v. Phelps, 11 in the 
 New York Court of Appeals. Woodruff, J., a judge of 
 much learning and great vi^or of mind, said: "May a per- 
 son about to engage in business which he believes may 
 involve losses, with a view to entering upon such business, 
 convey his property to his wife, voluntarily, without con- 
 sideration, to secure it for the benefit of himself and family, 
 in the event that such losses should occur? I cannot 
 regard this question, as in substance, other than the inquiry, 
 May a man, for the purpose of preventing his future credit- 
 
 1 Ex parte Russell. In re Butter- 2 Black v. Nease, 37 Pa. St. 438. The 
 
 worth, 19 Ch. D. 588, 51 L. J. Ch. law should not be so framed orcon- 
 
 521, 46 L. T. N. 8. 113, 30 W. R. strued as to tempt men to desert their 
 
 584 ; following Mackay v. Douglas, 14 legitimate business, and engage in 
 
 L. R. Eq. 106. Compare Winchester specious and hazardous speculations, 
 
 v. Charter, 102 Mass. 272; Beeckman concerning the dangers of which thej 
 
 v. Montgomery, 14 N. J. Eq. 106: are ignorant, by allowing them to 
 
 Cramer v. Reford, 17N. J. Eq. 383 ; Na- "make a feather bed on which they 
 
 tional Bank of Metropolis v. Sprague, may fall lightly," under the plea of 
 
 20 N. J. Eq. 25; Annin v. Annin, 24 affection for their wives and children. 
 
 N. J. Eq. 194 ; Case v. Phelps, 39 N. Thomson v. Dougherty, 12 S. & R 
 
 Y. 164; Gable v. Columbus Cigar (Pa.) 451. 
 
 Co., 140 Ind. 563, 38 N. E. Rep. 474 ; 3 39 N. Y. 169 ; Neuberger v. Keim, 
 
 Bates v. Cobb, 29 S. C. 395, 7 S. E. 134 N. Y. 35, 31 X. E. Rep. 868; 
 
 Rep. 743; Lewis v. Simon, 72 Tex. 470, Schreyer v. Scott. 134 O. S. 106, 111, 
 
 10S. W. Rep. 554; Sommermeyer v. 10 S. C. Rep. 579; Eorbach v. Hill, 
 
 Schwartz, 89 Wis. 66, 61 N. W. Hep. 112 U. S. 144, 149, 5 S. C. Rep. 81. 
 311.
 
 204 PLACING PROPERTY BEYOND RISK. § IOO 
 
 ors from collecting their demands out of his property then 
 owned, and for the purpose of casting upon them the haz- 
 ards of his success in the business in which he is about to 
 engage, convey his property without consideration to his 
 wife, in order to secure the benefit of it to himself and 
 family, however disastrous such business may prove, and 
 continue in the possession, not even putting the deeds upon 
 record until after such subsequent indebtedness arises?" 1 
 The question of the validity of a gift or settlement, as to 
 subsequent creditors, as we have said, turns upon the ques- 
 tion as to whether it was made in contemplation of future 
 debts,' 2 or to secure the debtor " a retreat in the event of a 
 probable pecuniary disaster in a hazardous business in which 
 he proposed to embark." 3 To bring the transfer within 
 this rule, " it must be executed with the intention and 
 design to defraud those who should thereafter become his 
 creditors," 4 the debtor proposing to throw the hazards of 
 the business in which he is about to engage upon others, 
 instead of honestly holding his means subject to the chance 
 of the adverse results incident to all business enterprises. 6 
 But these cases must be co.nsidered within proper restric- 
 tions. Thus, where a man who was solvent paid for prop- 
 erty which he procured to be conveyed to his wife, and 
 there was no evidence tending to show that by so doing 
 he intended to defraud any subsequent creditors, it has 
 been held that the conveyance is perfectly valid in her 
 
 'See City Nat. Bank v. Hamilton, See AVilliams v. Banks, 11 Md. 198; 
 
 34 N. J. Eq. 160. Moore v. Blondheini, 19 Md. 172. 
 
 2 Walter v. Lane, 1 MacAr. (D. C.) Smith v. Vodges, 92 U. S. 183; 
 
 282. Sexton v. Wheaton, 8 Wheat. 229 ; 
 
 3 Fisher v. Lewis, 69 Mo. 631 ; Neu- Mullen v. Wilson, 44 Pa. St. 418; 
 
 berger v. Keim, 134 N. Y. 33. 38, :il Stileman v. Ashdown, 2 Atk. 481. 
 
 N K. Re]>. 268; Schreyer v. Scott, Compare United States v. Griswold, 7 
 
 134 U. S. 406, 411 ; 10 S. C. Rep. 579. Sawyer, 335; McPherson v. Kings- 
 
 See Carver v. Barker, 73 Hun (N. Y.) baker, 22 Kan. 646; Sheppard \. 
 
 416, 26 N. Y. Supp. 919. Thomas, 24 Kan. 780; Kirksey v. 
 
 1 Matthai v. Heather, 57 Md. 484. Snedecor, 60 Ala. 192 ; Marshall v. 
 
 Groom, 60 Ala. 121.
 
 § 100 
 
 PLACING PROPERTY BEYOND RISK. 
 
 205 
 
 favor as against his subsequent creditors, and that a hus- 
 band had a right to make a settlement of property upon 
 his wife, provided it was free from fraud. 1 Subsequent 
 indebtedness cannot be invoked to make that fraudulent 
 which was honest and free from impeachment at the 
 time. 3 In Graham v. Railroad Co., 3 a leading and im- 
 portant case, it is said to be a well-settled rule of law 
 that if an individual, being solvent at the time, without any 
 actual intent to defraud creditors, disposes of property for 
 an inadequate consideration, or even makes a voluntary 
 conveyance of it, subsequent creditors cannot question 
 the transaction. The argument advanced is that such 
 creditors are not injured ; they gave credit to the debtor 
 in the status which he had after the voluntary conveyance 
 was made. This rule was applied to an alienation by a 
 corporation. 4 
 
 1 Curtis v. Fox, 47 N. Y. 301 ; Phil- 
 lips v. Wooster, 36 N. Y. 412. The 
 rule obtaining in New York is clearly 
 laid down in Scrheyer v. Scott, 134 
 U. S. 411, 10 S. C. Rep. 579, where 
 it is said: "It is evident that the 
 rule obtaining in New York, as well 
 as recognized by this court, is 
 that even a voluntary conveyance 
 from husband to wife is good as 
 against subsequent creditors; unless it 
 was made with the intent to defraud 
 such subsequent creditors ; or there 
 was secrecy in the transaction by 
 which knowledge of it was withheld 
 from such creditors, who dealt with 
 the grantor upon the faith of his own- 
 ing the property transferred ; or (lie 
 transfer was made with a view of 
 entering into some new and hazard- 
 ous business, the risk of which the 
 grantor intended should be cast upon 
 the parties having dealings with him 
 in the new business." This language is 
 cited with approval in Neuberger v. 
 Keim, 134 N. Y. 38, 31 N. E. Rep. 2(58. 
 
 2 See Babcock v. Eckler, 24 N. Y'. 
 630 ; Reade v. Livingston, 3 Johns. 
 Ch. (N. Y.) 500; Seward v. Jackson. 
 8 Cow. (N. Y.) 406 ; Hinde's Lessee \. 
 Longworth, 11 Wheat. 199. 
 
 3 102 U. S. 148. See Wallace v. 
 Penfield, 106 U. S. 260, 1 S. C. Rep. 
 216; Mattingly v. Nye, 8 Wall. 370; 
 Schreyer v. Scott, 134 U. S. 41 I, 10 S. 
 C. Rep. 579; Sexton v. Wheaton, 8 
 Wheat. 239, per Marshal, C. .1.: 
 1 Am. Lea. Cas. 17, where the law 
 upon this subject is learnedly dis- 
 cussed in a note. In Porter v. Pitts- 
 burg Bessemer Steel Co., 120 U. S. 
 673, 7 S. C. Rep. 1206, the court said : 
 "It is a well-settled principle that 
 subsequent creditors cannol be heard 
 to impeach an executed contract, 
 where their dealings with the com- 
 pany, of which They claim the benefit, 
 occurred after the contract became 
 an executed contract." 
 
 4 Compare Wabash, St. L. & P. Ry. 
 Co. v. Ham, 114 TJ. S. 587, 594, 5 S. C. 
 Rep. 1081.
 
 206 CONVEYANCES AVOIDED. § IOI 
 
 § 101. Conveyances avoided.— The Chancellor said, in 
 Beeckman v. Montgomery: 1 "Aside from the fact that 
 the deed was made by the father in contemplation of 
 future indebtedness, there are strong circumstances indi- 
 cating the existence of actual fraud. The deed was made 
 on the eve of the grantor engaging in mercantile busi- 
 ness, which would require for its successful pursuit both 
 capital and credit. He disposed, at the time of the con- 
 veyance, of the entire control of his real estate, which 
 constituted the bulk of his property, leaving him- 
 self an inadequate capital for conducting his business or 
 raising loans. The credit which he obtained was due to 
 his former standing as a man of responsibility. The con- 
 veyances to his children were not advancements adapted 
 to the means and situation in life of the grantor — they 
 absorbed his whole property. The deed to the defendant 
 was made while he was an infant but sixteen years of age, 
 not needing an advancement, and not of discretion to 
 take charge and management of the property. It was 
 kept secret for more than a year, and was not left at the 
 office to be recorded till the day after a suit at law was 
 commenced by the complainants for the recovery of their 
 debt." 2 If a person about to contract debts makes a 
 voluntary conveyance, with the intent to deprive future 
 creditors of the means of enforcing collection of their 
 debts, and this purpose is accomplished, it is very clear 
 that such creditors are injured and defrauded. 3 A cred- 
 
 ■II X. J. Eq. 112; see Haston v. 413; Barling v. Bishopp, 29 Beav. 
 
 Castner, 31 N. J. Eq. 704; Francis v. 417; Clark v. Killian, 103 U. S. 766, 
 
 Lawrence, 18 X. .1. Eq. 508, 22 Atl. affi'g Killian v. Clark, 3 MacAr. (D. 
 
 Rep. 259. C.) 37!) ; Hitchcock v. Kieley, -11 Conn. 
 
 2 See City Nat. Bank v. Hamilton, 34 (ill ; Williams v. Davis, 69 Pa. St. 21 ; 
 
 N.J. Eq. 158 ; Carpenter v. Carpenter, Pawley v. Vogel, 42 Mo. 303; Hersch. 
 
 25 N. .1. Eq. 194; Dick v. Hamilton, feldt v. George, 6 Mich. 456 ; Hilliard 
 
 Deady, 322; Burdick v. Gill, 7 Fed. \. Cagle, 46 Miss. 309; Huggins v. 
 
 Rep. 668 : Cart* r v. Grimshaw, 49 N. Perrine, 30 Ala. 396. 
 
 II. LOO; Snyderv. Christ, 39 Pa. St. * Burdick v. Gill, i Fed. Rep. 670. 
 199; Mullen v. Wilson, II Pa. St.
 
 §102 CONVEYANCES NOT FRAUDULENT. 207 
 
 itor has a right when extending credit, to rely upon the 
 honesty and good faith of the debtor, and may assume, 
 without inquiry, that the debtor has made no fraudulent 
 conveyances of property. 1 In Francis v. Lawrence 8 the 
 court say : "The deed was not delivered to the grantee. 
 and not placed upon the record, but was held by the wife, 
 and the husband was thus enabled to trade upon the false 
 credit which he acquired by being the apparent owner of 
 the property, while the deed was ready to be put upon 
 the record at a moment's notice This transac- 
 tion cannot be regarded in any other light than as a fraud 
 upon the creditors." 
 
 §102. Conveyances not considered fraudulent. — But the 
 courts will not willingly overturn a settlement or volun- 
 tary alienation at the suit of a subsequent creditor, upon 
 slight, unsubstantial, or intangible proof. Carr v. 
 Breese 3 is an illustration. In that case the New York 
 Court of Appeals, overruling the court below, decided that 
 where a husband, worth $22,000, owing debts amounting to 
 $2,800, which were subsequently paid, and engaged in a 
 prosperous business, purchased property costing about 
 $16,000, and took it in the name of his wife, and paid 
 about $10,000 of the consideration by mortgage on his 
 real estate, and the balance by mortgage upon the 
 premises purchased, the settlement was not unsuitable or 
 disproportionate to his means. Miller, J., speaking for 
 the court, said : " There was no insolvency in fact or in 
 contemplation, no new enterprise started which involved 
 unusual or extraordinary hazard, but the continuance of 
 the business of the grantor for the period of three years, 
 and no dishonest failure, or attempt in any form to 
 defraud. An existine indebtedness alone does not render 
 
 'Ibid. (N. Y.) 134. s><' s. i>. Phoenix Bank 
 
 2 48 N. J. Eq. 511, 2,2 Atl. Eep. 259. v. Stafford, si) N. Y. 105 . Truesdell v. 
 3 81 N. Y. 584; overruling- 18 Hun Sarles,104 N.Y. Wis, LON. E. Rep. 189.
 
 208 SUBSEQUENT CREDITORS. § 103 
 
 a voluntary conveyance absolutely fraudulent and void as 
 against creditors, unless there is an intent to defraud. 1 
 This is especially the case when it is shown that the resi- 
 due of the property was amply sufficient to pay all 
 debts," ~ and that the credit was given without any reli- 
 ance on the ownership of the land conveyed. 3 It may be 
 observed that although in Babcock v. Eckler, 4 the dis- 
 proportion was far greater than in Carr v. Breese, 5 the 
 conveyance was upheld; but in this case evidence was 
 introduced tending to show that the conveyance was not 
 entirely voluntary. 6 Again in Carpenter v. Roe, 7 the 
 court, citing Hinde's Lessee v. Longworth, 8 says: " If it 
 can be shown that the grantor was in prosperous circum- 
 stances and unembarrassed; and that the gift was a reason- 
 able provision, according to his state and condition in 
 life, and leaving enough for the payment of the debts of 
 the grantor," the presumptive evidence of fraud would be 
 met and repelled. 9 
 
 £ 103. Subrogation of subsequent creditors. — A device to 
 which fraudulent insolvents often resort consists in making 
 a voluntary coveyance and following this up by paying 
 all the antecedent or existing creditors, practically with 
 the moneys derived from the credit extended by subse- 
 quent creditors. Savage v. Murphy, 10 already quoted, 
 
 •Citing Van Wyck v. Seward, G 6 See Childs v. Connor, :;* N. Y. 
 
 Paige (X. V.) 62 ; Second Nat. Bank Superior Ct. 471. 
 
 of Beloit v. Merrill, 81 AVis. 142, 50 MO N. Y. 227. 
 
 N. W. Rep. On;',. 11 Wheat. 213. 
 
 'Citing Jackson v. Post, 15 Wend. Sec Crawford v. Logan, 97 HI. 
 
 (N. Y. 1 588; Phillips v. Wooster, 36 396 ; Clark v. Killian, 103 U. S. 766 ; 
 
 X. Y. 112 : Dunlap V. Hawkins, 59 N. Wallace v. Penfield, 106 IT. S. 200, 1 
 
 Y.342. S. C. Rep. 216; Pepper v. Carter, 11 
 
 'Sorenson v. Sorenson, 69 Mich. M<>. 540; Payne v. Stanton, 59 M<>. 
 
 351 37 N. W. Rep. 358. 158; Genesee River X T at. Bank v. 
 
 'j I X. Y. 623. Mead, 92 N. Y, 637. 
 
 >81N. Y. 584. "ol X. Y 508. Barhydl v. Perry. 
 
 57 Iowa419, 10 N. W. Rep. 820.
 
 § 104 SUBSEQUENT AND ANTECEDENT CREDITORS. 20Q 
 
 was such a case. 1 It is a most unsubstantial mode of 
 paying a debt to contract another of equal amount. It is 
 the merest fallacy to call such an act getting- out of 
 debt, 2 and the case should be treated as if the prior 
 indebtedness had continued throughout/ 5 or as a case of 
 a continued or unbroken indebtedness. 4 
 
 § 104. Subsequent creditors sharing with antecedent credit- 
 ors.— In a case which arose in Massachusetts, in which an 
 administrator sought to annul a fraudulent alienation made 
 by his intestate, Dewey, J., said: "Though the ground 
 of avoiding this conveyance is that the land was liable to 
 be taken to satisfy existing creditors only, yet when the 
 conveyance is avoided, the proceeds of the sale will be 
 assets generally, and other creditors will receive the ben- 
 efit thereof incidentally." 5 ' In Kehr v. Smith, 6 Davis, ]., 
 observed : " It is well settled, where a deed is set aside 
 as void as to existing creditors, that all the creditors, 
 prior and subsequent, share in the fund pro rata.'' 
 Mr. Peachey observes : 8 "It has, however, never been 
 disputed but that a subsequent creditor would participate 
 in the benefit of a decree instituted by a prior creditor, 
 and would have the same equity for having the property 
 
 'See § 96. See also Churchill v. 10 N. Y. 189 ; Thomson v. Dougherty, 
 
 Wells, 7Coldw. (Term.) 364; Moritz 12 S. & K. (Pa.) 448; Henderson v. 
 
 v. Hoffman, 35 III. 553. Hoke, 3 Dev. (N. C.) Law 12-14; 
 
 2 Paulk v. Cooke, 39 Conn. 566. Kissam v. Edmundson, 1 Ired. Eq. 
 
 3 Edwards v. Entwisle, 2 Mackey (N. C.) 180; Sexton v. Wheaton, 1 
 (D. C.) 43; Antrim v. Kelly, 8 N. B. Am. Lea. Ca*. 45; Norton v. Norton, 
 R. 587, 1 Feci. Cases, 1062; Rudy v. 5Cush. (Mass.) 529 ; O'Daniel v. Craw- 
 Austin, 56 Ark. 73, 19 S. W. Rep. 111. ford, 4 Dev. | X. ( !. Law. 197-204 : 
 . 4 Paulk v. Cooke, 39 Conn. 566. Reade v. Livingston, 3 .Johns. ( !h. (N. 
 
 5 Norton v. Norton, 5 Cush. (Mass.) Y. ) 4*1-4!)!! ; Townshend v. Windham, 
 
 530. 2 Ves. Sen. 10; Jenkyn v. Vaughan, 
 
 6 20Wall. 30. 3 Drewry, 419-124. See Bassetl v. 
 
 " Citing Magawley's Trust, 5 De G. MeKenna, 52 Conn. 412. citing this 
 
 and Sm. 1 ; Richardson v. Smallwood, section; Day v. Cooley, L18 Mass. 
 
 Jacob 552-558 ; Savage v. Murphy, 34 524. 
 
 N. Y. 508; lley v. Niswanger, Harp. "Peachey on Marriage Settlements, 
 
 Eq. (S. C.) 295 ; Robinson v. Stewart, p. 197. 
 14
 
 2IO MIXED CLAIMS. § 105 
 
 applied. Again no distinction has been drawn in such 
 cases between the different classes of creditors, that is, 
 between those whose debts existed at the time the deed 
 was executed, and those who became creditors subse- 
 quently, or that any priority can be given to those who 
 were creditors at the date of the instrument over the 
 subsequent creditors ; all would, in fact, participate pro 
 rata" 1 There has been, however, some hesitancy on the 
 part of the courts in holding that a deed which existing 
 creditors could avoid, was, after avoidance by them, to be 
 considered void as to all creditors ; for that is practically 
 the effect of letting in subsequent creditors, especially to 
 share pro rata. Though the deed cannot be set aside at 
 the instance of subsequent creditors, yet the authorities 
 seem to give them the same benefit when the antecedent 
 creditors succeeded in annulling it. It would seem to 
 result that while there is a discrimination in the right to 
 attack the conveyance, there is none as to sharing in the 
 successful result. In considering this feature, however, 
 the rule that a creditor, by filing a bill, acquires an 
 equitable lien and preference in certain cases, must not 
 be overlooked. 3 
 
 J; 105. Mixed claims accruing prior and subsequent to alien- 
 ation.— The right of a grantee or vendee, from whom a 
 creditor seeks to wrest property held in trust for a debtor, 
 to require the creditor to show, in a proper case, that his 
 debt accrued before the conveyance which is questioned, 
 is clearly established. As a voluntary or fraudulent con- 
 veyance is ordinarily good between the parties, and can 
 be upheld except as against certain classes of persons, it 
 
 ■Cited with approval in Amnion's Thomson v. Dougherty, 12 S. & R. 
 
 Appeal, ii:; I'a.St. 289. SeeChurchill (Pa.) 448; Kidney \. Coussmaker, 12 
 
 \ Wills. ', Coldw. (Tenn.) 364 ; Trim- Ves. Jr. 136, note. Compare Converse 
 
 ble v. Turner, 21 Miss. :;4S : Kipp v. v. Hartley. 31 Conn. 379. 
 
 Hanna, 2 Bland's* !h. (Md. ) 26 ; Beach 2 See Pullis v. Robinson, 3 Mo. App. 
 
 \ White, Walker's Ch. (Mich.) 495; 548. See §61; also Chap. XXV.
 
 § 105 MIXED CLAIMS. 
 
 21 l 
 
 follows that the vendee can force the plaintiff to show 
 that he comes within some privileged class entitled to 
 impeach the transaction. 
 
 Where it is important or vital to the creditor's success 
 to show that he was an existing creditor as to the con- 
 veyance, and it appears that some of the items of his 
 claims accrued prior and others subsequent to the con- 
 veyance, and all these items are embodied in one judg- 
 ment, it has been held in several cases that he is to be 
 treated as a subsequent creditor, not entitled to attack 
 the conveyance. 1 In Baker v. Gilman, 2 the creditor was 
 an attorney, and his claim was for services. Johnson, J., 
 said : " The plaintiff was clearly a subsequent creditor of 
 Gilman. His employment, by virtue of his retainer, 
 was a continuous one until the determination of the 
 actions. It was a single demand for services, a small 
 portion of which were rendered before the conveyance, 
 and the far larger portion long afterwards. This being 
 embraced in one judgment, nearly two years after the 
 conveyance, renders the plaintiff clearly a subsequent 
 creditor." In Reed v. Woodman, 3 it appeared from the 
 evidence that the greater part of the debt which was 
 the foundation of the judgment rendered in favor of 
 the demandant accrued subsequent to the date of the 
 challenged conveyance. The court said : " The levy was 
 entire, and cannot be so apportioned or divided as to 
 constitute a satisfaction for that part of his debt which 
 was due prior to that deed. The demandant, having 
 taken judgment for his whole demand, is to be regarded 
 as a creditor subsequent to the conveyance of the land 
 
 •See Miller v. Miller, 23 Me. 22, Pittsb. L. J. (Pa.) 135; Henderson v. 
 
 39 Am. Dec. 598, and notes; Reed v. Henderson, 133 Pa. St. 399, 19 \tl. 
 
 Woodman, 4 Me. 400 : Usher v. Hazel- Rep. 424. 
 
 tine, 5 Me. 471 ; Quimby v. Dill, 40 2 52 Barb. (N. Y.) 33. 
 
 Me. 528 ; Moritz v. Hoffman, 35 111. 3 4 Me. 400. 
 558. Contra, Ecker v. Lafferty, 20
 
 212 STATUS Ol CREDITORS. § 106 
 
 in question by his debtor. He cannot therefore impeach 
 that conveyance but by showing actual fraud." 1 
 
 $ 106. Status of creditors whose claims accrued after notice 
 of alienation. — As a general rule a subsequent creditor 
 who acquired his claim with knowledge or notice of the 
 conveyance sought to be annulled, cannot attack it as 
 fraudulent.' In Baker v. Gilman, 3 Johnson, J., said : 
 "I do not think a creditor, who has trusted his debtor 
 after being fully informed by the latter that he has put 
 his property out of his hands, by a conveyance, valid as 
 between him and his grantee, though voidable as to exist- 
 ing creditors, should ever be allowed to come into court 
 and claim that such conveyance was fraudulent and void, 
 as to him, on account of such indebtedness. As to such 
 creditor, a conveyance of that kind would not be fraudu- 
 lent, in any sense, and could not, on that ground, be 
 avoided." But the mere recording of a conveyance is not 
 constructive notice to a creditor. 4 
 
 1 See Humes v. Scruggs, 94 TJ. S. ' 3 52 Barb. (N. Y.) 39. See Sledge 
 22. v. Obenchain, 58 Miss. 670 ; Kane v. 
 
 2 Lehrnberg v. Biberstein, 51 Tex. Roberts, 40 Md. 594 : Williams v. 
 457 ; Monroe v. Smith, 79 Pa. St. 459 ; Banks, 11 Md. 198; Sheppard v. 
 Herring v. Richards, 3 Fed. Rep. 443. Thomas, 24 Kan. 780. Compare 
 See Knight v. Forward, 63 Barb. (N. Kirksey v. Snedecor, 60 Ala. 192. 
 Y.) 311 ; Lewis v. Castleman, 27 Tex. 4 Marshall v. Roll, 139 Pa. St. 399, 
 107 20 Atl. Rep. 999.
 
 CHAPTER VII. 
 
 WHO MAY BE COMPLAINANTS. 
 
 § 107. 
 108. 
 109. 
 110. 
 111. 
 112. 
 113. 
 114. 
 115. 
 116. 
 117. 
 118. 
 
 Parties complainant. 
 
 Joinder of complainants. 
 Suing on behalf of others. 
 "And others." 
 Surety. 
 
 > Executors and administrators. 
 
 Assignee in bankruptcy. 
 
 General assignee. 
 
 Receivers. 
 
 Receivers of corporations. 
 
 Foreign receivers. 
 
 ^ 119. Creditors of corporations. 
 
 120. Sheriff. 
 
 121. Heirs — Widow. 
 
 122. Husband and wife. 
 
 123. Tort creditor. 
 
 124. Overseer of the poor. 
 
 125. Creditors having liens. 
 
 126. Purchaser removing ii 
 
 brances. 
 
 127. Creditors opposing will. 
 127a. Cestui que trust. 
 
 § 107. Parties complainant. — The rights of the two great 
 classes — existing and subsequent — into which creditors 
 are necessarily divided, having been considered, 1 the dis- 
 cussion would not be complete without noticing, in 
 detail, the cases in which complainants in different capac- 
 ities are permitted to prosecute the various litigations 
 under consideration. The principle must be kept con- 
 stantly in view that fraudulent conveyances and secret 
 trusts can be assailed only by those who have been 
 injured, 3 andare voidable only in favor of parties occupying 
 
 'See Chaps. V., VI. 
 
 3 Sides v. McCullough, 7 Mart. (La.) 
 654 : 12 Am. Dec. 519 ; Edwards v. 
 McGee, 31 Miss. 143; Philips v. 
 Wooster, 36 N. Y. 412 ; Morrison v. 
 Atwell, 9 Bosw. (N. Y.)503 ; Scholey 
 v. Worcester, 4 Hun (N. Y.) 302; 
 Pass v. Lynch, 117 N. C. 454. In 
 Nash v. Geraghty, 105 Mich. 382, 63 
 N. W. Rep. 437, the court says : 
 ' ' Before a decree is granted on behalf 
 
 of creditors setting aside a convey- 
 ance, it should be made affirmath ■ l\ 
 to appear that the creditors have 
 been substantially injured by the 
 transfer." Hal] v. Moriarity, 57 Mich. 
 
 345. A. conveyed to B. in hand of 
 
 creditors. A railroad company 
 
 to take the land and pay an award of 
 
 damages. Whensued for the amount 
 
 Of the award the c pany Se1 up that 
 
 15. derived title by fraud The plea
 
 214 
 
 PARTIES COMPLAINANT. 
 
 § I07 
 
 the positions of non-assenting- 1 creditors 2 or subsequent 
 purchasers. 3 The creditor who first institutes a suit in 
 chancery to avoid a fraudulent conveyance is entitled to 
 relief, without regard to other creditors standing- in the 
 same right, who have not made themselves joint parties 
 with him, 4 or taken any proceedings. The creditors 
 spoken of as entitled to discover equitable assets, or 
 annul covinous transfers, are the creditors of the grantor 
 or donor who has made the fraudulent conveyance,'' or 
 has title to the equitable assets. That a " fraud upon 
 the public" was the design of the transfer is not regarded 
 as a sufficient ground for avoiding it. 6 A fraudulent pur- 
 pose is harmless if unattended with any wrongful effect. 7 
 Manifestly, the fraudulent intent, as we shall show, must 
 be connected with the transaction assailed, and spring 
 out of it, and not relate merely to some entirely inde- 
 pendent act. s It does not follow from this rule that it is 
 
 was held bad. Lacrosse & M. R. R. 
 Co. v. Seeger, 4 Wis. 268. So a party 
 with whom goods are deposited for 
 safe keeping cannot set up fraud in 
 the title, the court in one case saying : 
 •■ We recognize the right of no man, 
 in this way. to turn Quixote and fight 
 against fraud, for justice sake alone. 
 In the mouth, therefore, of this de- 
 fendant. 1 do not perceive the righl to 
 
 Sel up this defense, even if it were 
 
 true in fact." Hendricks v. Mount, 5 
 N. .J. L. 738, 743. Compare Bell v. 
 Johnson, ill III. 374. Sec § 91. 
 
 ( Ireene v. Sprague Mfg. Co., 52 
 Conn. 330. 
 
 8( e Mosely v. Mosely. 15 N Y. 
 334 : .Mien v. Steiger, 17 Col. 556, 
 31 Pac. Rep. 226; Pass v. Lynch, 117 
 N. ('. 158; Allenspach v, Wagner, 9 
 Col. 132, lu Pac. Rep. 802; Burke v. 
 Adams, 80 Mo. .".04. The creditor's 
 debl musl be due before the bill will 
 lie. Browne v. Hernsheim, 71 Miss. 
 r.74. 14 So. Rep. 36. 
 
 "Burgett v. Burgett, 1 Ohio 4G9, 
 13 Am. Dec. 634 ; Thompson v. Mooi-e, 
 86 Me. 47 ; Jewell v. Porter. 31 N. H. 
 34; Byrod's Appeal, 31 Pa. St. 241. 
 
 *McCalmonl v. Lawrence,! Blatchf. 
 235. 
 
 Sec Chapter 111. Morrison v. At- 
 well, 9 P.osw. (N. Y.)503; Powers v. 
 Graydon, 10 Bosw. <X. Y.) 630. A 
 creditor's bill lias been supported 
 
 founded upon the judgmenl claim of 
 
 a cestui que trust, against the personal 
 representative of the trustee, to reach 
 
 the proceeds of laud sold liv the trus- 
 tee, which were held under a trust 
 
 for the benefit of creditors. Diefen- 
 dorf v. Spraker, 10 N. Y. 240. 
 
 8 Griffin \. Doe. d. Stoddard, 12 Ala. 
 783. 
 
 • Buford v. Keokuk X. L. Packet 
 ('0.. :i Mo. A pp. 159. 
 
 8 Wilson v. Forsyth, 24 Barb. (N. 
 Y.) 128.
 
 § ioS JOINDER 01 COMPLAINANTS. 21 5 
 
 necessary that any particular creditor should be men- 
 tioned by name. 1 If the proofs establish that the 
 alienation was made to defeat creditors, and that the plain 
 tiff was a creditor, a case is made out. 
 
 It is well observed by Chancellor Kent, in Brown v. 
 Ricketts, 3 that the question of parties to a suit is fre- 
 quently perplexing and difficult to reduce to rule. The 
 remark, as will be manifest, is peculiarly appropriate to 
 the different actions and proceedings affecting fraudulent 
 alienations. We may further state that suits by creditors 
 against fraudulent debtors or their alienees, form no 
 exception to the general rule which requires that all the 
 parties in interest who are in esse shall be brought into 
 the case. 3 
 
 § 108. Joinder of complainants.— Let us first notice the 
 authorities relating to the joinder of complainants in the 
 various forms of actions instituted by creditors against 
 fraudulent alienees. It may be stated as a general propo- 
 sition that parties who are creditors by several judgments 
 may join as complainants in an action to reach property 
 fraudulently alienated by a debtor." 1 Such parties 
 
 1 Blount v. Costen, 47 Ga. 584. Kan. 331; Chapman v. Banker .v 
 
 2 3 Johns. Ch. (N. Y.) 555. Tradesmen Pub. Co., 128 Mass. t78 ; 
 
 3 Bowen v. Gent, 54 Md. 555. Com- Gates v. Boomer, 17 Wis. 155; Wall 
 
 pare Christian v. Atlantic & N. C. R. v. Fairley, 73 N. C. 464; Reed v. 
 
 R. Co., 133 U. S. 241, 10 S. C. Rep. Stryker, 4 Abb. App. Dec. (N. Y.) 26 ; 
 
 260. Murray v. Hay. 1 Barb. Ch. (N. 5 
 
 4 Buckingham v. Walker, 51 Miss. Elliott v. Pontius, 136 1ml. 641. 35 
 
 494 ; Butler y. Spann,: 27 Miss. 234 ; N. E. Rep. 562, 36 Id. 421. In 
 
 Sage v. Mosher, 28 Barb. (N. Y.) 287 : Boniaf v. Means, 37 S. C. 520, 
 
 Snodgrass v. Andrews, 80 Miss. 472 : 16 S. E. Rep. 537, the courl says : " It 
 
 North v. Bradway, 9 Minn. 183; is true, that such a proceeding, called 
 
 Dewey v. Mover, 72 N Y. 74 ; Simar a creditor's bill, is usually brought in 
 
 v. Canaday, 53 N. Y. 305: Bank- the name of one creditor, for himself 
 
 night v. Sloan, 17 Fla. 286; Ballen- and such others as will co in and 
 
 tinev. Beall, 4 111 203 ; White's Bank contribute to il xpenses. Bui 1 
 
 of Buffalo v. Farthing, 9 Civ. Pro. do not understand that, where several 
 
 (N. Y.) 64, 101 N. Y. 344. 4 N. judgment-creditors go on the record 
 
 E. Rep. 734; Higby v. Ayres, 14 as plaintiffs, it is a misjoinder oi
 
 2l6 
 
 rOINDER OF COMPLAINANTS. 
 
 § 108 
 
 possess the same status, and are in pursuit of a com- 
 mon object against the same fraudulent vendee, and the 
 embarrassment of a multitude of suits is thereby avoided. 
 In Robbins v. Sand Creek Turnpike Co., 1 the court 
 quoted the following language approvingly: "Several 
 persons having a common interest arising out of the same 
 transaction or subject of litigation, though their interests 
 may be seperate, may join in one suit for equitable relief, 
 provided their interests be not adverse or conflicting. 
 . . . . And several judgment-creditors, holding different 
 judgments, may unite in filing a creditors' bill to reach 
 the equitable interests and choses in action of the debtor, 
 or to obtain the aid of the court to enforce their liens at 
 law." ~ And in Powell v. Spaulding, 3 the principle is 
 laid down to the effect that "where there is unity in inter- 
 est, as to the object to be obtained by the bill, the parties 
 seeking redress in chancery may join in the same COm- 
 
 plaintiffs, of which the defendant 
 del it i >r, or those win) claim under him, 
 have any right to complain. The 
 judgment-creditors do not therehy 
 inake themselves partners with the 
 other creditors, or claim that they 
 have a joint interest in the cause of 
 
 action, but that, as creditors, they 
 are separate and distinct, having an 
 interest iii common to set aside 
 fraudulent convej ances of t heir com- 
 mon debtor, which stand in the way 
 of t heir being paid, according to their 
 respective priorities " Hut compare 
 Veaton v. Lenox, 8 Pet. 123; Seaver 
 v. Bigelows, 5 Wall. 208. Judgment- 
 i-i editors cannot thus unite in an 
 action at law. Sage v. Mosher. 28 
 Barb. (N. Y.) 288. Compare Carroll 
 v. Aldrich, 17 Vt. 569. The court de- 
 cided, in Elmore v. Spear, 27 Ga. 196, 
 that where a creditor proposed to 
 reach legal as distinguished from 
 equitable assets, the suit technically 
 
 was not a creditor's bill. Hence a 
 single creditor was held to he entitled 
 to institute a suit to reach legal assets, 
 and if he thereby gained a priority 
 over other creditors it was said he 
 could retain this advantage, and was 
 not forced to divide with the others, 
 hut was entitled to the control of his 
 own case, and could not be required 
 to make other creditors parties to his 
 
 bill. See ii 54, 55. Ill States where 
 
 the practice prevails that a bill can be 
 brought by simple contract-creditors, 
 it has been held that several creditors 
 can join in one suit. Ruse v. Brom- 
 berg, 88 Ala. 620, 7 So. Rep. 384. 
 
 '34 End. 401. See Hank of Rome 
 v. Haselton, 1."") H. J. Lea(Tenn.) 216. 
 
 -In New Jfork a motion to allow 
 other judgment-creditors to intervene 
 is discretionary with the court below. 
 Whites Bank v. Latching, 101 N. Y. 
 :;i». 1 N. E. Rep. 7:; I. 
 
 3 3 Greene (Iowa) 44:!, 461.
 
 § 108 JOINDER OF CI >MPL \l\ A\ I S. :\] 
 
 plaint and maintain their action together." 1 In Brinker- 
 hoff v. Brown,- Chancellor Kent ruled that different 
 creditors might unite in one bill, the object of which was 
 to set aside a fraudulent conveyance of their common 
 debtor. It was so held also in McDermutt v. Strong, 8 
 Edmeston v. Lyde, 4 Conro v. Port Henry Iron Co., 5 
 Wall v. Fairley, 6 and Mebane v. Layton. 7 And where a 
 defendant in two separate bills, brought by different 
 judgment-creditors to reach the same land, files one 
 answer to both bills, it seems that he thereby virtually 
 consolidates the suits, and they may be heard together as 
 one cause, or as two causes under one style, without 
 entering any specific order of consolidation. 8 In one case 
 a sheriff, and the judgment-creditor under whose execution 
 a levy had been made, were allowed to join in a creditors' 
 bill. Each, it was said, had an interest in preventing a 
 multiplicity of suits, and in closing the matter in a single 
 .controversy; their interests were in harmony, and in no 
 respect conflicting, and hence of such character as entitled 
 them to unite in the suit. 10 There is, however, no obli- 
 
 1 See Strong v. Taylor School Town- 9 Adams v. Davidson, LO X. V. 309, 
 ship, 79 Ind. 208; Cohen v. Wolff, 92 315, where the court said: " It was 
 Ga. 199, 17 S. E. Rep. 1029. In Ham- also objected thai the plaintiffs 
 lin v. Wright, 23 Wis. 494, the court had no common interest in the 
 observed that "different judgment- recovery that entitled them to file 
 creditors may join in one suit against their bill Bach had an interest in 
 the judgment-debtor and his fraudu- preventing a multiplicity of suits. 
 lent grantees, though the interests of and havingthis whole matter closed 
 the latter are separate and distinct, by a single controversy. It could nol 
 and were not acquired at the same have been done otherwise than by the 
 time. The object of such a suit is to course adopted ; their interests were 
 reach the property of the debtor." in harmony with each other, in no 
 
 2 6 Johns. Ch. (N. Y.) 139. respect conflicting and were such as 
 3 4 Johns. Ch. (N. Y.) 687. entitled them to unite in this suit." 
 4 1 Paige (N. Y.) 637. See p 81. 
 
 5 12 Barb. (N. Y.) 27. I0 Compare Bates v. Plonsky, 28 
 
 6 73N.C. 464. Bun (N .Y.) 112. See also Dohertj 
 
 '86 N. C. 571. v. Holliday, 137 End. 382, 32 \. I'.. 
 
 8 Rogers v. Dibiell, 6 Lea (Tenn.) Rep. 315, 36 Id. 907; Armstrong v. 
 
 69. Dunn, 143 End. 133, 41 N. E. Etep. 540.
 
 218 
 
 fOINDER OF COMPLAINANTS. 
 
 § 1 08 
 
 Ration upon judgment-creditors to join. 1 Creditors by 
 judgment and by decree may unite in one suit, 2 but 
 
 judgment-creditors and simple contract-creditors cannot 
 join. 3 
 
 Where one party is a creditor by judgment and another 
 by decree, both having acquired liens upon the property 
 of their debtor which entitle them to similar relief against 
 an act of the defendant, which is a common injury, they 
 may join in a bill. 4 The general theory upon which 
 creditors are permitted to unite as complainants is that 
 they are seeking payment of their judgments out of a 
 common fund, viz., the property of the debtor ; his fraudu- 
 lent conduct with reference to his assets affects them all, 
 and is the subject-matter of investigation. A receiver is 
 often appointed to reach and take possession of equitable 
 interests or property fraudulently alienated, and as he can 
 act equally well for the different creditors, the expense, 
 delay, and confusion incident to conducting different 
 suits are avoided. 5 A judgment-creditor of a firm who is 
 
 Existing and subsequent creditors 
 may join in a bill to sot aside a con- 
 veyance. O'Neil v. Birmingham Brew- 
 ing Co., 101 Ala. 382, 13 So. Rep. .-,70. 
 While's Bank of Buffalo v. Farth- 
 ing, 9 Civ. Pro. (N. Y.)64. 
 
 '-' Brown v. Bates, 10 Ala. 432. 
 
 Bauknight v. Sloan, 17 Fla. 284. 
 4 ciarkson v De Peyster, :i Paige 
 N Y. I 320. 
 
 See Gates v. Boomer, 1 7 Wis. 455 ; 
 Eamlin v. Wright, 23 Wis. 491 ; Ruff- 
 ing v. Tilton, 12 tnd. 259; Baker v. 
 Bartol, Cal. 483; Pierce v. Milwau- 
 kee Construction Co., 38 Wis. 253; 
 Dewej >. Mover, 72 N Y. 71 ; below, ( J 
 
 I Bin (N. V.i 170 ; Bigby v. Ayres, 14 
 Kan. 381 , Buckingham v. Walker, 
 51 Miss. 194. In Smith v. Schulting, 
 
 I I Hun i N. Y.) 54, the courl says : 
 •• The principal issue presented by 
 
 this complaint is the invalidity of the 
 alleged release. It is manifest by the 
 admissions of the complaint itself, 
 that unless the release be set aside 
 there can be no recovery of the in- 
 debtedness to the several firms. They 
 have a cOQimon interest, therefore, in 
 this principal issue, and inasmuch as 
 the release is, or under t he allegations 
 of the complaint must be assumed to 
 be, a joint one, obtained by a common 
 fraud, there is no reason why all the 
 parties tu ii may not unite in an action 
 brought for the purpose of declaring 
 it void, and setting it aside because of 
 a common fraud practiced upon them 
 in obtaining i(. We think it comes 
 directly within the principle of the 
 ea>es cited by appellant's counsel, 
 and although the plaintiff s were un- 
 connected parties with respect to the
 
 § io8 
 
 JOINDER Of COMP] UNANTS. 
 
 
 also a judgment-creditor of one of the members of the 
 firm, may sue on both judgments to overturn an assign- 
 ment. 1 
 
 Obviously, hostile claimants cannot join in any form of 
 action, 2 and a bill is demurrable where it appears that one 
 of the complainants has no standing in court, or antago- 
 nistic causes of action are set forth, or the relief for 
 which the complainants respectively pray in regard to a 
 portion of the property sought to be reached, involves 
 totally distinct questions requiring different evidence and 
 leading to different decrees. :i 
 
 indebtedness to them, they may join 
 in the suit because there was one con- 
 nected interest among them all center- 
 ing in the principal point in issue." 
 Citing Binks v. Rokeby, 2 Madd. 234 ; 
 Ward v. Northumberland, 2 Anstr. 
 469, 477 ; Whaley v. Dawson, 2 Sch. 
 & Lef . 3 70. 
 
 1 Genesee County Bank v. Bank of 
 Batavia. 43 Hun (N. Y.) 295. 
 
 2 See Hubbell v. Lerch, 58 N. Y. 
 237 ; St John v. Pierce, 22 Barb. (N. 
 Y.) 362, affi'd in Court of Appeals, 4 
 Abb. App. Dec. (N. Y.) 140 ; Sedg. & 
 Wait on Trial of Title to Land, 2d ed., 
 §188. 
 
 3 Walker v. Powers, 1!)4 U. S. 245. 
 ( umpare United States v. Amer. Bell 
 Telephone Co., 128 U. S. 352, 9 S. C. 
 Rep. 90; Merriman v. Chicago, etc. R. 
 R. Co., 64 Fed. Rep. 550; Emans v. 
 Emans, 14 N. J. Eq. 114 ; Sawyer v. 
 Noble, 55 Me. 227. The creditor may 
 proceed by ancillary proceedings in 
 any other court of concurrent juris- 
 diction with the court rendering the 
 judgment, to remove clouds from the 
 titles of any property which is deemed 
 to be subject to the lien of the judg- 
 ment. Each judgment makes a sepa- 
 rate cause of action. Scottish-Ameri- 
 can Mortgage Co. v. Follansbee. 14 
 
 Fed. Rep. 125. [n Ostrander v. Weber, 
 114 N. Y. 101, 21 N. E. Rep. 112, the 
 court says : " The complaint Bets forth 
 these several subjects of equitable 
 jurisdiction, viz: The foreclosure of 
 chattel mortgages. (Briggs v. Oliver, 
 68 N. Y. 339; Hart v. Ten Eyck, 2 
 Johns. Ch. 99; Thompson \. Van 
 Vechten, 5 Duer. 624 ; Dupuy v. 
 Gibson, 36 111. 200; Charter v. 
 Stevens, 3 Denio, 33. ) The determin- 
 ation of the extent and priority 
 of various and conflicting lien-, be- 
 tween creditors under chattel morl 
 gage and a judgment-credjtor under 
 levy by execution ; a multiplicity of 
 actions between such creditors(Super- 
 visors v. Deyoe, 77 X. Y. 219; N. Y. >v 
 N. H. H. R. Co. v. Schuyler, 17 N. ^ . 
 608) and the advantage of a sale ■ •! 
 property suitable, used and adapted 
 to a particular business, in lump, and 
 not in separate parcels, 1<> the end 
 that the greatest sum may lie realized 
 for the benefit of all the creditors. 
 (Prentice v. Janssen, 79N. V. L79 490 
 Every one of these subjects bus been 
 held sufficient to maintain an action 
 inequity. Their combination in one 
 complaint should not !»■ held i" de- 
 feat an equity action.'"
 
 220 SUING ON BEHALF OF OTHERS. § 109 
 
 g 109. Suing on behalf of others. — Mr. Pomeroy says : l 
 •• I >ne creditor may sue on behalf of all the other credit- 
 ors in an action to enforce the terms of an assignment 
 in trust for the benefit of creditors, to obtain an account- 
 ing and settlement from the assignee, and other like 
 relief; also, in an action to set aside such an assignment on 
 the ground that it is illegal and void; and also one judg- 
 ment-creditor may sue on behalf of all other similar 
 creditors in an action to reach the equitable assets, and 
 to set aside the fraudulent transfers of the debtor. In 
 all these classes of cases the creditors have a common 
 interest in the questions to be determined by the contro- 
 versy. 2 The complainant may sue alone or with other 
 judgment-creditors. 3 It is remarked by Nelson, J., in 
 Myers v. Fenn, 4 that " the practice of permitting judg- 
 ment-creditors to come in and make themselves parties 
 to the bill, and thereby obtain the benefit, assuming at 
 the same time their portion of the costs and expenses of 
 the litigation, is well settled ; " 5 but this intention must 
 be manifested by suitable averments in the bill ; 6 and the 
 creditor so applying must not have been guilty of laches ; 7 
 and if, after a finding of a court annulling a fraudulent 
 preference, other creditors seek to come in as co-com- 
 plainants, they may be allowed to do so, but their de- 
 mands will be postponed in favor of the original com- 
 
 1 Pomeroy's Remedies & Remedial 4 111. 203; Terry v. Calnan, 4 S. C. 
 
 Rights, ; 394 See Pfohl v. Simpson, 508. 
 
 74 X. Y. 137. Marsh v. Burroughs, 1 Woods, 
 
 Greene v. Breck, 10 Abb. Pr. 467, and cases cited. 
 
 (N. Y 12; Brooks v. Pock, 38 » 5 Wall. 207. 
 
 Barb. (N. Y.) 519; Innes v. Lansing, 7 B Compare strike v. McDonald, 2 
 
 Paige (N. ST.) 583;Conro v. Port Eenry 1 1 . & < ! . (Md.) 192 ; Shand v. Hanley, 
 
 Iron Co., 12 Barb. (N.Y.) 59; Hammond TIN. Y. 324: Barry v. Abbot, 100 
 
 -. Budson River I. & M. Co., 20 Barb. Mass. 396; Neely v. Jones, 16 W.Va. 
 
 (N. Y) 878 : I Ihewetl \ Moran, 17 625. 
 
 Fed. Rep. 820; Ponsford v. Bartley, ' Burl v. Eeyes, 1 Flipp, 72. 
 
 2 Johns. & II. 736; Ballentine v. Beall, ' See Flash v. Wilkereon, 22 Fed. 
 
 Rep. 689.
 
 § I IO "AND OTHERS." 22] 
 
 plainant. 1 Where an action is brought in aid of an 
 assignment to subject to it property fraudulently diverted, 
 it can be prosecuted by any creditor whether he has 
 obtained a judgment or not." 
 
 Stockholders may sue in the right of the corporation 
 where the latter refuses to proceed ; :? but where there is 
 unreasonable delay in bringing the suit, the cause of action 
 may be defeated by the application of the doctrine of 
 equitable estoppel. 4 " Where one incurs expense in 
 rescuing property belonging to many, a court of equity 
 has power unquestionably to direct that the expenses so 
 incurred shall be paid from the common fund." 1 
 
 § no. "And others." — It is a mistake to suppose that the 
 statute of Elizabeth only avoids deeds and conveyan. 
 coming within its exact provisions as to creditors. The 
 statute is much broader in its operation.' 5 It enacts that 
 every conveyance made to the end, purpose and intent to 
 delay, hinder, or defraud creditors and others of their just 
 and lawful actions, etc., shall be void. " It extends not 
 only to creditors, but to all others who have cause of action 
 or suit, or any penalty or forfeiture ; " and, as elsewhere 
 shown, embraces claims for slander, trespass, and other 
 torts. 7 The claimant may not come within a sharply 
 defined meaning of the word "creditor," but he may 
 
 1 Smith v. Craft, 11 Biss. 340. Merwin v. Richardson, 52 Conn. 
 
 - Spelman v. Freedman, 130 N. Y. 223, 237. 
 
 421, 29 N! E. Rep. 765; Maass v. 6 See § 16. Tyler v. Tyler, 136 Dl. 
 
 Falk, 146 N. Y. 34, 40 N. E. Rep. 504; 536, 21 N. E. Rep. 616. 
 
 Abegg v. Bishop, 142 N. Y. 286, 36 ' Gebhart v. Merfeld, 51 Md. 325. 
 
 N. E. Rep. 1058. See Cooke v. Cooke, 43 Md. 523 ; 
 
 'Taylor v. Holmes, 127 U. S. 492, ton v. "Wheaton, 1 Am. Lea. Cas. 42, 
 
 8 S. C. Rep. 1192 ; Ha wes v. Oakland, notes; Jackson v. Myers, L8 Johns 
 
 104 U. S. 450; Greaves v. Gouge, 69 (N. Y.) 425; Lillanl v. McGee, 4 Bibb. 
 
 N. Y. 157; Wait on Insolvent Corps. (Ky.) 165; Lowry v. Pinson, 2 Bailey's 
 
 § 74. (S. C.) Law. 324, 328, and other i 
 
 " 4 Sheldon Hat Blocking Co. v. there cited ; McKenna v. Crowley, 16 
 
 Eickemeyer Hat Blocking Machine K. I. 366, 17 AH. Rep. 354. 
 Co., 90 N. Y. 607.
 
 SURETY 
 
 § III 
 
 maintain his standing " in the equity of creditors." ' So in 
 Feigley v. Feigley, 2 the court say: "The statute seems 
 to design to embrace others than those who are strictly 
 and technically creditors ; and if, under such a compre- 
 hensive clause as 'creditors and others,' a wife, who has 
 been made the victim of her husband's fraud, is not to be 
 included, we are at a loss to ascertain to whom else it was 
 designed to relate." 3 Then the principle that a volun- 
 tary post-nuptial settlement made by a person indebted is 
 prima facie fraudulent, as to creditors, applies as well in 
 behalf of the representatives of a deceased partner as of 
 general creditors; 4 and a partner who liquidates firm 
 judgments stands in the position of a creditor with regard 
 to fraudulent alienations of his co-partner. 5 
 
 § in. Surety. — Sureties on an appeal bond may be sub- 
 rogated to the rights of the judgment-creditor, to bring a 
 creditor's action to set aside fraudulent deeds even 
 
 1 Shontz v. Brown, 87 Pa. St. 131. 
 7 Md. 561. 
 
 Welde v. Scotten, 59 Md. 72. 
 
 Conveyance to defeat alimony. — In 
 Bailey v. Bailey, 61 Me. 363, the court 
 very properly ruled that if an estate 
 was conveyed to prevent the enforce- 
 ment of a decree awarding alimony, 
 or other proper aid, such conveyance 
 waH fraudulenl as to the wife and 
 mighl I"- avoided. It was contended 
 on tin- part of the husband that a 
 person in the situation of the wife 
 could not he regarded as a creditor so 
 a- to .Mine within the statutes of 
 Elizabeth relating to fraudulenl con- 
 veyances. The courl derided, how- 
 ever, that t be statute covered creditore 
 mul others, ami cited Livermore v. 
 Boutelle, 1 1 Gray | Mass. 31 ;. a simi- 
 lar case, in which the courl said : " If 
 -he was not a creditor she wae of 
 
 the other- whose JUSI and lawful 
 
 actions, suits, and reliefs would be 
 delayed, hindered, or defeated by such 
 conveyance." See Green v. Adams, 
 59 Vt. 602, 10 Atl. Rep. 742 ; Foster v. 
 Foster. 56 Vt. 546 : Burrows v. Purple, 
 107 Mass. 428; Morrison v. Morrison. 
 49 N. H. 69; Seott v. Magloughlin, 
 133 111. :i(i, 24 N. E. Rep. 1030. In 
 Tyler v. Tyler, 126 111. 536, 21 N. E. 
 Rep. 616, the court says : "If the wife 
 be not, technically, a 'creditor.' she 
 surely conies within the language 
 ' ot lnr persons,' and she is, obviously, 
 as much injured by Buch ;i convey- 
 ance as any creditor can he." This 
 language was used in a case wheie a 
 
 busband conveyed property to defeat 
 a claim for maintenance. 
 
 Alston v. Kowles, 13 Fla. 118. 
 
 Swan v. Smith, 57 Miss 548. 
 
 S,e Lewis v. Palmer, 28 N. Y. 271 : 
 Hinckley v. Kreitz, 58 N. Y. 590.
 
 I 12 
 
 I \ ECUTORS AND A.DMINISTRA1 i 
 
 
 though the principal informed the sureties of the fraud 
 before they became bound. 1 Sureties may enforce their 
 rights in the creditor's name if their interests require it, :; 
 for "a surety who pays a debt for his principal is entitled 
 to be put in the place of the creditor, and to all the means 
 which the creditor possessed to enforce payment against 
 the principal debtor."" It maybe here recalled that a 
 surety is a creditor of the principal obligor, and of his 
 co-sureties from the time the obligation is entered into, 1 
 and that a conveyance by a surety for inadequate con- 
 sideration to defeat a contemplated liability for contribu- 
 tion to a co-surety will be set aside."' A person who pays 
 a debt as security for a firm becomes a creditor of the 
 firm, and is not entitled to any greater rights than simple 
 contract creditors. 6 
 
 § 112. Executors and administrators. — Ordinarily an 
 executor or administrator will not be allowed to impeach 
 the fraudulent conveyance of his testator or intestate. 
 Like the heirs, he is bound by the acts of the deceased. 7 
 
 1 Martin v. Walker, 12 Hun (N. Y.) 
 53. 
 
 2 Townsend v. Whitney, 75 N. Y. 
 425 ; affi'g 15 Hun (N. Y.) 93. Com- 
 pare Cuyler v. Ensworth, 6 Paige (N. 
 Y.) 32 ; Speiglemyer v. Crawford, 6 
 Paige (N. Y.) 254. 
 
 3 Lewis v Palmer, 28 N. Y. 271. 
 See Wads worth v. Lyon, 93 N. Y. 
 214 ; Shutts v. Fingar, 100 N. Y. 543, 
 3 N. E. Rep. 588. 
 
 4 Pennington v. Seal, 49 Miss. 525 : 
 Williams v. Banks, 11 Md. 242 ; Sex- 
 ton v. Wheaton, 1 Am. Lea, Cas. 37 : 
 Rider v. Kidder. 10 Ves. 360. See 
 §90. 
 
 5 Pashby v. Mandigo, 42 Midi. 172. 
 
 6 McConnel v. Dickson. 43 111. 99. 
 Chief -Justice Thurman said, in a case 
 in Ohio: "A surety against whom 
 judgment lias been rendered, may, 
 
 without making payment himself, 
 proceed, inequity against his princi- 
 pal, to subject the estate of the latter 
 to tlie paymentof thedebt." Hale v. 
 Wetmore, 4 Ohio St. 600. See Mc- 
 Connel] v. Scott, 15 Ohio. 101 ; Borsey 
 v. Heath, 5 Ohio, 354; Stump v. 
 Rogers, 1 Ohio, 533. 
 
 1 Blake v. Blake. 53 Miss. 193: 
 Merry v. Fremon, 11 Mo. 522 ; /.<>ll \. 
 Soper. 75 Mo. 462 ; Davis v. Swanson, 
 54 Ala. 277; George V.Williamson, 26 
 Mo. 11)0; Loomis v. Tillt. 16 Barb. (N. 
 Y. ) 545 ; Van Wickle v. Calvin. 2:'. 
 La. Ann. 205 : Chofceau v. Jones, 1 1 
 111. 319; Snodgrass v. Andrews, 80 
 .Miss. 472 ; Peaslee \ . Barnaj , 1 D. 
 Chip. ( Yt.) 331 : Bawes v. Loader, 
 Y'elv. 196; Livingston v. Livingston, 
 3 Johns. Ch. (N. Y.) L48 ; Estes v. 
 Eowland, 15 R. I. 128 ; Burton v.
 
 224 EXEC1 rORS WI» ADMINISTRATORS. §112 
 
 •• As a party to a fraudulent conveyance cannot allege 
 its illegality, with a view to its avoidance, so neither can 
 his heirs nor representatives coming in as volunteers, 
 and standing, as it were, in his shoes." 1 This language 
 is employed in Rhode Island : " If the deceased has 
 conveyed his estates away in fraud of his creditors, the 
 creditors who have been defrauded are the proper parties 
 to prosecute the remedy." 2 Statutory changes sup- 
 ported by the tendency of the courts to prevent the 
 confusion incident to splitting, up the administration of 
 estates between creditors and personal representatives, 
 have led to the general establishment of the practice of 
 permitting and imposing the duty upon executors and 
 administrators to sue for property fraudulently alienated 
 by the deceased in his lifetime. 3 Thus in New York, 
 executors and administrators, who could not formerly 
 effectually impeach the conveyances of the deceased 
 on the ground that the same were made in fraud of cred- 
 
 Farinholt, 8G X. C. 260. An excep- Knight v. Morgan, 2 Barb. (X. Y.) 
 
 t i< xi is often recognized to exist inde- 171; Morris v. Morris, 5 Mich. 171; 
 
 pendent of statute where the estate is McLane v. Johnson, 43 Vt. 48 ; Parker 
 
 insolvent. Clark v. Clough. 65 X. v. Flagg, 127 Mass. 30 ; Bonslough v. 
 
 1 1 43, 23 Atl. Rep. 526. Bonslough, 68 Pa. St. 495 ; Bushnell v. 
 
 ■McLaughlin v. McLaughlin, 16 Bushnell, 88 Ind. 403 ; Cross v. Brown, 
 
 Mo. 342. See Hall v. Callahan, 66 51 N. H. 486; also note to Ewing v. 
 
 Mo. 316 ; Beebe v. Saulter, S7 111.518: Handley, 14 Am. Dec. 157; Barton v. 
 
 < Irawford v. Lehr, 20 Kan. 509 ; Rhem Hosner, 24 Hun (X. Y.) 468 ; Johnson 
 
 v. Tull. 13 [red. Law (X. C.) 57. It v. Jones, 79 Ind. 141; Holland v. 
 
 has been held in New York, thai a Cruft, 20 Pick. (Mass.) 321 ; Martin v. 
 
 surrogate had no jurisdiction to deter- Bolton, 75 Ind. 295; German Bank 
 
 mine the validity of such a transfer, v. Leyser, 50 Wis. 258, 6 N. W. Rep. 
 
 Richardson v. Root, 19 Hun (X. Y.) 800; Garner v. Graves, 51 Ind. 188; 
 
 17.;; Barton v. Hosner, 24 Hun iX. Forde v. Exempt Fire Co., 50 Cal. 
 
 Y. i 168. 200 ; Norton v. Norton, 5< lush. (Mass.) 
 
 >. Howland, 15 R. I. 129, 23 524: Sullice v. Gradenigo, 15 La. 
 
 Ail. Rep. 624. Ann. 582 ; note to Hudnal v. Wilder, 
 
 Martin v. Root, 18 Mass. 222: 17 Am. Dec T44, 4 McCord's S. < !. 
 
 Welsh v. Welsh, 105 Mass. 229; Gib- Law, 294; Bassetl v. McKenna, 52 
 
 boh \. Crehore, 5 Pick. (Mass) L54 ; Conn. 437. 
 Hills \. Sherwood, 18 < !al. 392 . Mc-
 
 §112 
 
 EXECUT< >kS AND ^DMINIS fRATO 
 
 
 itors, are now enabled to do so by statute. 1 This new 
 remedy, however, is not exclusive. Formerly in that 
 State a creditor could bring an action only when the per- 
 sonal representative was in collusion with the fraudulent 
 vendee, against the personal representative and vendee 
 to have the covinous transfer set aside, and the property 
 applied as assets, 2 but by recent legislation 8 the right to 
 sue is extended, and it is not necessary that the plaintiff 
 should reduce his claim to judgment. The action must 
 be brought on behalf of himself and other creditors, bul 
 the absence of such allegation is waived if not taken 
 by demurrer or answer. 4 In Wisconsin the cred- 
 
 'N. Y Laws, 1889, ch. 487. See 
 Moseley v. Moseley, 15 N. Y. 336 ; 
 Bate v. Graham, 11 N. Y. 237 ; Barton 
 v. Hosner, 24 Hun (N. Y.) 469; Bry- 
 ant v. Bryant, 2 Rob. (N. Y.) 612: 
 Southard v. Benner, 72 N. Y. 427 ; 
 Mc Knight v. Morgan, 2 Barb. (N. Y r .) 
 17! ; Lore v. Dierkes, 19 J. &. S. 
 (N. Y.) 144. National Bank of West 
 Troy v. Levy, 127 N. Y. 549 ; Lichten- 
 berg v. Hartf elder. 103 N. Y. 302. 
 Where the deed was not delivered 
 till after the death of the testa- 
 tor his executor can bring no 
 action to set it aside. Rosseau v. 
 Bleau. 131 N. Y. 177, 30 N. E Rep. 
 52 : Putney v. Fletcher, 148 Mass. 247, 
 19 N. E. Rep. 370. In Massachusetts 
 the remedy is exclusive. The same 
 rule applies in Indiana. Ind. R. S. 
 1881. £2333. SeeGalentine v. Wood, 
 137 Ind. 532. 35 N. E. Rep. 901. 
 
 2 See Phelps v. Piatt, 50 Barb. (X. 
 Y.) 430 ; Sharpe v. Freeman, 45 N. Y. 
 802; Bate v. Graham, 11 N. Y. 237 ; 
 Barton v. Hosner, 24 Hun (N. Y.) 468. 
 See §§ 114. 115. 
 
 :; N. Y. Laws, 1889, ch. 487. In 
 National Bank v. Levy, 127 N. Y. 551, 
 the court says: "The plaintiff as a 
 creditor, on the refusal of the admin- 
 
 i5 
 
 istrator to bring the action, was al 
 liberty as it did to do so, making her 
 a party defendant with a view to the 
 same equitable relief which ma\ have 
 
 been awarded if she had I n the 
 
 party plaintiff. (Bate v. Graham, 11 
 N. Y. 237; Greaves v. Gouge, 69 N. 
 Y. 154 ; Grouse v. Frothingham, 97 N. 
 Y. 105)." 
 
 4 Brown v. Brown, 83 Hun | X. Y. i 
 162,31 N. Y. Supp. 650; Nat. Trades 
 men's Bank v. Wet more, 124 N. Y. 
 241, 26 N. E. Rep. 248. Tn Prenl 
 Bowden. 145 N. Y. 342, 10 N. E Rep. 
 13, Finch, J., says: "Our whole 
 theory of administration rests upon 
 the idea that when a man dies his 
 estate shall answer to Ids creditors 
 equally and without preference, and 
 the surrogate is purposely mad.' mas. 
 ter of the situation to prevenl in- 
 equality of payment. This plaintiff 
 could undoubtedly have maintained 
 an action for the benefil of all the 
 creditors, alter refusal of the repre- 
 sentatives, to se1 Hds conveyance 
 aside, bu1 instead of thai she 
 ing, by an ordinary creditor's action, 
 to secure payment of her own debt, 
 regardless of what may happen to 
 others."
 
 226 EXEC! rORS AND ADMINISTRATORS. § 112 
 
 itor may, in a proper case, 'compel the executor or 
 administrator to bring the action, or bring it him- 
 self. 1 In Pennsylvania it is said that the admin- 
 istrator's intervention would not seem to be neces- 
 sary if the creditors prefer to proceed for themselves. 3 
 In Wisconsin the insufficiency of the estate to pay debts 
 must first be ascertained by the county court. 3 This pre- 
 requisite of a formal establishment of the debt as already 
 shown 4 is not now universally conceded to be essential. 
 The Supreme Court of the United States asserts'' that 
 the authorities are abundant and well settled, that a 
 creditor of a deceased person has a right to go into a 
 court of equity for the discovery of assets, and to secure 
 the payment of the debt ; and the creditor, when there, 
 would not be turned back to a court of law to establish 
 his debt. The court being in rightful possession of the 
 cause for a discovery and account, will proceed to a final 
 decree upon all the merits. So debts which are made 
 by statute a lien upon lands of a deceased debtor, will 
 furnish a creditor at large, the correctness of whose 
 claim is acknowledged by the executor, a standing in 
 court to file a creditors' bill to set aside conveyances 
 alleged to have been made bv the testator in fraud of 
 creditors. 7 In California the rule is recognized that a 
 creditor may bring the action, if the executor refuses, and 
 that no request is necessary where the executor is also 
 the alleged fraudulent grantee. 8 The action can only 
 
 'German Bank v, Leyser, 50 Wis. S. 165, IIS. C. Rep. 525, dissenting 
 
 6 V W. Rep. 809. See Andrew opinion of Brown, J, 
 
 \. Hinderman, 71 Wis. lis, :;r, x. w. 'Thompson v. Brown, 4 Johns. 
 
 Rep 824. ' Ch. (N. Y.) 619. See ? Tit. 
 
 Appeal of Fowler, sr p a . si 154. 'Haston v. Castner, 31 X. J. Eq. 
 
 German Bank v. Leyser, 50 Wis. 697, and cases cited. Sec Jones v. 
 
 BN. W. Rep. 809 Davenport, UN. J. Eq. 34, 13 Atl. 
 
 79. Rep. 652. See §87. 
 
 Kennedy v. Creawell, 101 U.S. 'Emmons \. Barton, 109 Cal. 062, 
 
 645. See Johnson \ Powers, 189 U. 12 Pac. Rep. 303.
 
 £ I 13 EXECUTORS VND ADMINISTRATE >RS. 2 2J 
 
 be brought by the executor where there is an insufficiency 
 of assets in his hands. 1 
 
 The creditor's bill in Kennedy v. Creswell 2 was filed 
 against an executor and devisees, and alleged that the 
 complainant held the testator's notes for $1,2,000; and 
 recited that the personal assets were insufficient to 
 meet the debts, and that the executor was paying some 
 of the claims in full, and leaving others unsatisfied. The 
 creditors prayed for an accounting of the personal 
 estate, a discovery of the real estate, and an application 
 of all the property to the payment of the debts. A 
 plea was interposed setting forth that the executor had 
 assets sufficient to pay the complainant and all other 
 creditors. A replication was filed and proofs taken, 
 which sustained the allegations of the bill, and demon- 
 strated the falsity of the plea. The court decided that 
 the complainant was entitled to a decree pro confcsso':' 
 and the defendant could not claim the right to answer 
 after interposing a false plea ; that the admission of the 
 executor that he had assets, could "be taken against 
 him for the purpose of charging him with a liability," but 
 it could not "serve him as evidence to prove the truth 
 of his plea." 
 
 § U3- — The personal representative may render himself 
 individually liable to creditors for a failure to recover prop- 
 erty fraudulently alienated by the testator or intestate, 4 
 
 'Field v. Andrada, 106 Cal. 107, Smith, 4 Texas, 411. See Sawyer v. 
 
 39 Pac. Rep. 323; Smith v. N. Y. Thayer, 70 Me 340; O'Connor v . Gif- 
 
 Life Ins. Co., 57 Fed. Rep. 133; to ford, 117 N . Y. 275, 22 N. E. Rep. 
 
 same effect, McCall v. Pixley. 48 1036. In Matter of Hart, 60 Hun (N 
 
 Ohio St. 379, 27 N. E. Rep. 887. Y.)516, L5 X. V. Sup,.. 239, the courl 
 
 2 101 U. S. 641. See Johnson v. say: "It appeared thai Archibald 
 
 Powers. 139 U. S. 156. Johnston, who died in August, 
 
 3 See Dows v. McMichael, 2 Paige was for years prior to his decease insol- 
 (N. Y.) 345. vent, and thai the administrators had 
 
 4 Lee v. Chase, 58 Me . 436 ; Cross v . knowledge of his insolvency . H fur 
 Brown, 51 N. H. 488; Danzey v. ther appeared that in 1886, for a nom-
 
 !28 
 
 1 XEi UTORS AND ADMINISTRATORS. 
 
 113 
 
 and he should include such property in the inventory, 1 
 unless, of course, he has no knowledge of it. 2 The per- 
 sonal representative, as he stands for creditors when so act- 
 ing, can only attack fraudulent transfers in cases where the 
 estate is insolvent,' 5 and with a view to recover a sum suffi- 
 cient to satisfy the creditors. The complaint should allege 
 that the action is instituted for the benefit of creditors. 4 
 The legislation clothing personal representatives with the 
 power to appeal to the courts to annul covinous alienations 
 made by the deceased is often highly salutary in practice. 
 The concurrent right of the creditor to seek redress is mani- 
 festly of the utmost importance, for the personal repre- 
 sentative is usually selected by, or is a near relative of, the 
 deceased and may, in some cases, be prompted by motives 
 of friendship or self-interest to shield the parties who have 
 depleted the estate; and, in some instances, is himself the 
 fraudulent alienee. Where the personal representatives 
 sue. a multiplicity of suits is prevented in cases where the 
 creditors are numerous and the necessity of a judgment 
 
 inal consideration, he conveyed to one 
 Harris an interest in this leasehold 
 estate, w hich I [arris upon the same 
 day conveyed to tin' wife of said 
 Johnston I'm- a like consideration. 
 Johnston being insolvent at the time 
 of this conveyance, the same was a 
 fraud upon his creditors if tin 1 Lease 
 was of any value whatever ; and it 
 would appear from the transactions 
 had by the administrators, in respeel 
 to other interests in this [ease, thai it 
 was valuable. I rnder these circum- 
 stances it certainlj was the duty of 
 the administrators to take proceed- 
 to recover this property which 
 Johnston had disposed of in fraud <>f 
 his creditors. This the administra- 
 tors, with full knowledge of these 
 facts, failed to do, and it seems to us 
 
 that they arc chargeable with neglect 
 of duty." 
 
 'Minor v. Mead, 3 Conn. 289 ; 
 Bourne v. Stevenson, 58 Me. 504; 
 Booth v. Patrick, 8 Conn. 106; And- 
 russ v. Doolittle, 11 Conn. 283. 
 
 Booth v. Patrick, 8 Conn. Kit;. 
 In Alabama au administrator hassuch 
 a right to the lands of his intestate as 
 will enable him to maintain a hill in 
 equity for the cancellation of a con- 
 veyance of the lands obtained by 
 fraud, provided the heirs are made 
 parties. Waddell v. Lanier, 62 Ala. 
 347. 
 
 I!,-,, v Hess, lit Ind. 2:5s; Pringle 
 \ . Pringle, ."Hi Pa. St. 281 ; Wall v. 
 Provident Inst., :J Allen (Mass I '.m. 
 
 1 ( rocker v. Craig, 46 Me. 327.
 
 §H4 
 
 ASSIGNEE l\ BANKRUPTCY . 
 
 
 or execution is avoided, 1 features important to the body 
 of creditors. 3 
 
 £114. Assignee in bankruptcy. — An assignee in bank- 
 ruptcy, under the late bankrupt act, represented the whole 
 body of creditors, and could in their behalf impeach, as 
 fraudulent, a conveyance of property by the bankrupt, 
 whenever the creditors might, by any process, acquire the 
 right to contest its validity. This rule is of quite general 
 application. 3 It is said, however, in the New York Court 
 of Appeals, 4 that, ''if the assignee should refuse or neg- 
 lect to sue for and reclaim property fraudulently trans- 
 ferred, it is abundantly established that the creditors may 
 commence an action to reach the property, making the 
 assignee, the debtor, and his transferees parties defendant. 
 And, in such an action, the property will be administered 
 directly for the benefit of the creditors." 5 It is believed, 
 however, that it is impossible to reconcile this doctrine 
 
 1 Barton v. Hosner, 24 Hun (N. Y.) 
 471. 
 
 * Fletcher v. Holmes, 40 Me. 364. 
 
 tin re Collins, 6 Fed. Cases, 114; 
 Foster v. Hackley, 9 Fed. Cases, 545 ; 
 Southard v. Benner, 72 N. Y. 427 : 
 Piatt v. Mead, 7 Fed. Rep. 95; Butcher 
 v. Harrison, 4 Barn. & Adol. 129 ; 
 Brackett v. Harvey, 25 Hun (N. Y.) 
 503 ; Nicholas v. Murray, 5 Sawyer, 
 320; Trimble v. Woodhead, 102 U. S. 
 047: Bates v. Bradley, 24 Hun (N. Y.) 
 84; Doed Grimsby v. Ball, 11 M. & 
 W. 531; Moyer v. Dewey, 103 IT. S. 
 301 ; Ball v. Slafter, 20 Hun (N. Y.) 
 354; Phelps v. McDonald, 99 CJ. S. 
 298; Glenny v. Langdon, 98 I". S. 28; 
 Shackleford v. Collier, 6 Bush (Ky.) 
 149 ; Badger v. Story, 16 N. H. 168 ; 
 Day v. Cooley, 118 Mass. 527 : Wads- 
 worth v. Williams, 100 Mass. 126. 
 The adjudication exempted the debt- 
 or's property from attachment. W i I 
 liams v.Merritt, 103 Mass. 184. As to 
 
 when an assignee in bankruptcy can- 
 not overturn a fraudulent convey- 
 ance, see Warren v. M ly, 122 U.S. 
 
 132, 7 S. C. Rep. 1063. 
 
 4 Dewey v. Moyer, 72 X. Y. 78; 
 Crouse v. Frothingham, 97 X Y. 106; 
 Harvey v. McDonnell, 113 X. Y. 531, 
 21 N. E. Rep. 695; Spelman v. Freed- 
 man, 130 X. Y. V21, 29 X. E. Rep. 765. 
 
 ■• Citing Sands v. ( lodwise, 2 Johns. 
 iX Y.) 481 ; Freeman v. Deming, 3 
 Sandf. Cli. (X. Y.) 327 ; Seaman v. 
 Stoughton, 3 Barb. Ch. (N. Y.) 344 ; 
 Fori Stanwix Bank \ . Leggett, 51 X. 
 V. 552 : Card v. Walbridge, 18 Ohio, 
 41! ; Phelps v. Curts, 80 111. 109; 
 Francklyn v. Fein. Barn. Ch. 30 
 First Nat. Bank v. Cooper, 9 X I '■ R 
 529 ; Boone v. Ball, ' Bush 1 Ky.) 66. 
 See Bank v. Cooper. 20 Wall. 171; 
 Sands v. Codwise, I Johns N Y 1 
 536; Kid. lei- v. Borrobin, 72 X. 5 . 
 104 : Bates v. Bradley. 24 Bun X Y.) 
 84.
 
 ASSIGNEE IX BANKRUPTCY 
 
 § 114 
 
 with the decisions of the United States Supreme Court, 1 
 for, according' to the latter court, if the assignee in whom 
 the right is vested neglected to prosecute during the two 
 years allowed by the act, the right to attack the fraudu- 
 lent transfer would be absolutely gone.~ The assignee 
 appointed under the act became vested with the title to 
 the bankrupt's assets by an assignment from the court, 
 into whose custody the estate was, in theory of law, in- 
 trusted. Even a claim in favor of the bankrupt against 
 a foreign government passed to the assignee. 3 The 
 assignee is regarded merely as a trustee for creditors. 
 When his accounts are passed, and he is discharged, the 
 property not disposed of reverts to the debtor by opera- 
 tion of law without reassignment. 4 The assignee in 
 bankruptcy takes only such rights as the bankrupt had, 
 and, in the absence of actual fraud, a general assignment 
 
 1 Compare Mover v. Dewey, 108 U. 
 s. 303; Trimble v. Woodhead, 102 
 is 649 : Glenny v. Langdon, 98 U. 
 S. 20 : Lowry v. Coulter, 9 Pa. St. 
 349; M. Master v. Campbell, 41 Mich. 
 514; McCartin v. Perry, 39 X. J. Eq. 
 201 . 
 
 'Compare Bates v. Bradley, 24 Hun 
 (N. V.i s} : Allen v. Montgomery, 48 
 Miss. 101. 
 
 Phelps v. McDonald, 99 U. S. 302; 
 ( Iomega s v. Vasse, l Pet. 195. 
 
 'See Dewey v. Mover, 9 Hun iX. 
 Y 180; Colie v- Jamison, 4 Hun 
 (N. V. 284 ; Page v. Waring. 76 X. 
 Y. 4?:;. and cases cited ; Boyd v. 01- 
 v.-.v, 82 End. 294. In Stewart v. Piatt, 
 nil r. s. 738, the courl said : " In 
 
 Y.itinan v. Savings Institution. !)") 
 
 1 '. s 764, we held it to be an estab- 
 lished rule that, ' excepl in cases of 
 attachment - aga ins! the property of 
 the bankrupt within a prescribed time 
 preceding the commencement of pro- 
 ceedinga in bankruptcy, and except 
 
 in cases where the disposition of prop- 
 erty by the bankrupt is declared by 
 law to he fraudulent and void, the 
 assignee takes the title subject to 
 all equities, liens or incumbrances, 
 whether created by operation of law 
 or by act of the bankrupt, which ex 
 isted against the property in the hands 
 of the bankrupt.' Brown v. Heath- 
 cote, 1 Atk. 160; Mitchell v. Winslow, 
 2 Story, 630; Gibson v. Warden, 14 
 Wall. 244 ; Cook v. Tullis, is Wall. 
 332 ; Donaldson v. Farwell, 93 U. S. 
 631; Jerome v. McCarter, 94 U. S. 734. 
 He takes the property in the same 
 
 • plight and condition ' that the bank- 
 rupt held it. Winsor v. McLellan, 2 
 Story, 402." Actual fraud is neces- 
 sary to give the assignee a standing 
 in court. Metropolitan Nat. Hank v. 
 Rogers, 8 C. C. A. 666, 53 Fed. Rep. 
 
 770 ; Warren v. M ly, 122 U. S. 138, 
 
 7 S ('. Hep 1063; In re Thomas, 
 15 Fed. Hep. 784.
 
 §115 GENEK \l A.SSIGNE] . 
 
 made prior to the assignment in bankruptcy is good 
 
 against the assignee. 1 
 
 § 115. General assignee. — It is a general rule of law that 
 a person cannot, by any voluntary act of his own transfer 
 to another a right which he does not himself possess. A 
 fraudulent transfer of property by a debtor, made with 
 intent to defeat creditors, is, as we shall presently show, con- 
 clusive upon the debtor so that he cannot himself reclaim 
 it. No logical theory can be easily framed upon which it 
 can be said that an assignment, wholly voluntary on tin- 
 debtor's part, vests in his assignee the right to attack fraud- 
 ulent transfers." Consequently, it has been decided that 
 the right to impeach or set aside a mortgage which is 
 fraudulent and void as against the creditors of the mort- 
 gagor, did not pass to an assignee of the mortgagor, by a 
 voluntary general assignment in trust for the benefit of 
 creditors, subsequently executed, and unaffected by any 
 statute in force at the time. 3 Still, there are many States 
 in which an assignment in insolvency or a voluntary assign- 
 ment is held to vest in the assignee the right to avoid ;i 
 conveyance made in fraud of creditors ; and in some States 
 the power is statutory. 4 Such an assignee may also set 
 
 1 In re Arledge, 1 Fed. Casey, 1127. 4 Hallo\vell v. Bayliss, in Ohio Si 
 
 'Pillsbury v. Kingon, 31 N. J. Eq. 537 ; Oil.hs v. Thayer, •', Cush (Ma 
 
 619; Brownell v. Curtis, 10 Paige (N. 30; Blake v. Sawin, L0 Allen (M 
 
 Y. ) 210 ; Storm v. Davenport, 1 Sandf. 310; Freeland v. Freeland 102 Ma 
 
 Ch. (N. Y.) 135; Sere v. Pitot, G 475 ; Spring v. Short, 12 Weeklj Dig. 
 
 Cranch, 332; Estabrook v. Messer- (N. Y ) 360, affi'd 90 N. Y. 544 ; Lynde 
 
 smith, 18 Wis. 545; Browning v. v. McGregor, 13 Allen (Mass.) 172; 
 
 Hart, 6 Barb. (N. V.) 91 ; Leaeli v. Waters v. Dashiell, 1 Md. 155. Simp- 
 
 Kelsey, 7 Barb. (N. Y.) 466 ; Maiders son v. Warren, 55 Me. L8; Shipman 
 
 v. Culver's Assignee, 1 Duv. (Ky.) v. iEtna Ins. Co., 29 Conn. 245; Shirley 
 
 164; Carrv. Gale, 3Woodb.& M. 68; v. Long. 6 Rand. (Va.) 735; Clough v. 
 
 Flower v. Cornish, 25 Minn. 473, 1 Thompson, 7 Gratt. (Va.) 26 ; Staton 
 
 Am. Insolv. Rep. 184; Day v. Cooley, v. Pittman, 11 Gratt. (Va 99; Doyle 
 
 118 Mass. 527; GofT v. Kelly, 74 Fed. v. Peckham, u R. I. 21 : Southard \ 
 
 Rep 327. Benner, 72 X. Y. 421. McMahon v. 
 
 ^ Flower v. Cornish, 25 Minn. 473. Allen, 35 N. Y. 403; Moncure \ Han
 
 232 
 
 GENERAL ASSIGNEE. 
 
 § 115 
 
 aside a mortgage or other conveyance which is void as to 
 creditors, for want of registration or other defects. 1 And 
 in some cases it is held that the assignee may affirm such 
 fraudulent conveyance, and thereby estop creditors from 
 impeaching it. 2 In New York creditors cannot assail a 
 fraudulent alienation so long as there is a valid assign- 
 ment in force. The right of attack is vested by statute 
 in the assignee. 8 But a creditor can, where the assignee 
 refuses to act, bring an action in behalf of the whole body 
 
 son. 15 Pa. St. 385 ; Tarns v. Bullitt, 
 35 Pa. St. 308; Matter of Cornell, 110 
 N. Y. 360, 18 X. E. Rep. 142. See 22 
 A Hi. L. J. 60, 81 ; Kilbourne v. Fay, 
 29 Ohio St. 264. In Walton v. Ely, 
 53 Kan. 260, 36 Pac. Rep. 332, 
 the court says: " This question has 
 been practically decided in the affirma- 
 tive in Chapin v. Jenkins, 50 Kan. 
 385, 31 Pac. Rep. 1084. In that 
 case, the difference between com- 
 mon-law and statutory assignments 
 was recognized. Under the former, 
 the relations of the parties were 
 controlled by contract, and the 
 assignee had no (tower except such 
 as was conferred upon him by 
 contract. As he stood in the shoes of 
 the assignor, he could assert no claim 
 to property fraudulently conveyed 
 which the assignor could not himself 
 ha\c asserted As has been decided 
 in 1 he cited case, our statute; changes 
 the effect of an assignment, and also 
 the powers of the assignee, as well as 
 his relations to the creditors. While 
 the assignment, in the first instance, 
 is the act of the assignor, thereafter 
 the control and disposition of the- 
 property, and also the powers and 
 
 duties of the assignee, are regulated 
 
 by statute, and no direction or Limita- 
 tion of the assignor is of any effect. 
 Undei our statute, the assignee is 
 made the representative of all the 
 creditors, and it is his duty to protect 
 the estate and defend the property as- 
 
 signed against adverse and unjust 
 claims." Mansfield v. First Nat. 
 Bank, 5 Wash. 665 ; Brown v. Farm- 
 ers' & M. Banking Co., 36 Neb. 434 ; 
 Red River Valley Bank v. Freeman, 1 
 N. Dak. 196 ; Moorer v. Moorer, 
 87 Ala. 545 ; Starks v. Curd, 88 Ky. 
 164. It has been held in some States 
 that if the assignee refuses to bring 
 the action, the creditor may bring it. 
 Kalmus v. Ballin, 52 N. J. Eq. 290, 28 
 Atl. Rep. 791 ; Lee v. Cole, 44 N. J. Eq. 
 31 S, 15 Atl. Rep. 531. 
 
 'Rood v. Welch, 28 Conn. 157; 
 Hanes v. Tiffany, 25 Ohio St. 549 ; hi 
 re Leland, 10 Blatchf. 503 ; Barker v. 
 Smith, 12 N. B. R. 474. But see 
 Williams v. Winsor, 12 R. I. 9; Dor- 
 sey v. Smithson, 6 H. & J. (Md.) 61 ; 
 Van Heusen v. Radcliff, 17 N. Y. 580 : 
 Ball v. Slaften, 98 N. Y. 622. He may 
 set up the fraudulent character of the 
 conveyance or mortgage when it is 
 attempted to he enforced against him. 
 Hutchinson v. First Nat. Bank, 133 
 Ind. 271, 30 N. E. Rep. 952. 
 
 Butler v. Hildreth, 5 Met. (Mass. | 
 49 : Freeland v. Freeland, 102 Mass. 
 477. But see Matter of Leiman, 32 
 Md. 225 ; Dugan v. Vattier, 3 Blackf. 
 (Ind.) 245. 
 
 3 Loos v. Wilkinson. HON. Y. 209, 
 18 N. E. Rep. 99 ; Spring v. Short, 90 
 N. Y. 538 ; Crouse v. Frothingham, 
 97 N. Y. 105, 113: Laws of 1858, 
 Chap. 314. In matter of Cornell, 110 
 X. Y. 360, the court says: "Under
 
 § I 15 GENERAL ASSIGNEE. 
 
 of creditors, in aid of the assignment, where the instru- 
 ment is valid as a whole, but certain of its provisions tend 
 to deprive the creditors of property to which they are 
 justly entitled. 1 The right to bring such an action is not 
 revived by the discharge of the assignee.'-' The right to 
 the cause of action and to the proceeds vests exclusively 
 in him; after his appointment the judgment-creditors can- 
 not bring an independant action. 3 In Minnesota it was 
 held that a receiver in insolvency can bring suit to set 
 aside fraudulent conveyances, and that it is not necessary 
 that the claims of the creditors on whose behalf he sues 
 should first have been reduced to judgment. 4 It is also 
 held in the same State that it is to be presumed that the 
 assignee represents creditors when he sues, and that a 
 purchaser from the assignee may maintain a suit to avoid 
 a fraudulent mortgage affecting the property purchased. 5 
 Of course the creditor may be estopped from attacking 
 the assignment by accepting benefits under it. ,; It has 
 been asserted that where the assignee is given by statute 
 full power to attack fraudulent transfers, stronger reasons 
 for setting aside an assignment on the ground of fraud 
 must be shown. 7 
 
 the act chapter 314 of the Laws of ' Voorhees v. Carpenter, I".'? Ind. 
 
 1858, an assignee for creditors, under 300, 26 N. E. Rep. 838. 
 
 a general assignment, may assail 3 Passavant v. Bowdoin, 60 linn, 
 
 fraudulent transfers of property made (N. Y.) 433, 15 N. Y. Supp. 8. 
 
 by the assignor prior to the assign- * Chamberlain \. O'Brien, H"> Minn. 
 
 ment, by action to set them aside. 80, 48 N. W. Rep. 447. 
 
 (Southard v. Benner, 72 N. Y. 424; 5 Shay v. Security Bank, •',!) N. W. 
 
 Ball v. Shaften, 98 Id. 622 ; Lichten- Rep. 920. 
 
 berg v. Herdtfelder, 103 Id. 306). Nor " Groves v. Rice, 1 18 N. Y. 22 
 
 do we entertain any doubt that it 42 N. E. Rep. 664; Mills v. Parkhurat, 
 
 would be his duty so to do in a proper 126 N. Y. 89, 26 X. E. Rep. mil. 
 
 case, and that his negligent omission Cerf v. Wallace, 14 Wash. 249, 252, 
 
 of this duty would constitute a breach 44 Pac. Rep. 264. 
 
 of trust. \ln re Colin, 78 N. Y. 248) " 'Batten v. Smith, 62 Wis. 92, 96, 
 
 ■Spelmanv. Freedman, 130 N. Y. 22 N. W. Rep. 3*2. Bui see Krura- 
 
 421, 29 N. E. Rep. 765; Abegg v. dick v. White. 107 Cal. 37, 39 Pac. 
 
 Bishop, 142 N. Y. 286, 36 N. E. Rep. Rep. 1060; Green v. Wallis Iron 
 
 1058; Maassv. Falk, 146 N. Y. 34, 40 Works, 49 N. J. Eq. 18, 23 Ad. Rep. 
 
 N. E. Rep. 504. 498.
 
 234 
 
 RE( EIVERS. 
 
 § 116 
 
 ^ 116. Receivers.— Under the practice in New York, and 
 in some of the other States, the receiver of a debtor may 
 impeach fraudulent transfers, 1 and disaffirm fraudulent 
 dealings of the debtor.'-' The appointment confers upon 
 him the right to set aside all transfers made by the debtor 
 to defraud his creditors, which the creditors themselves 
 could have avoided 1 ' In Bostwick v. Menck, 4 it was 
 decided that the right of a receiver representing creditors, 
 and acting in their behalf, was no greater than that of the 
 creditors themselves ; that the legal and equitable right of 
 the creditors was limited to securing a judgment setting 
 aside transfers as fraudulent only in so far as might be 
 necessary to satisfy debts ; and that, when this was accom- 
 plished, the receiver's duties, and consequently his pow- 
 ers, and his right to act further in behalf of the creditors, 
 ceased as to the property that had been conveyed by the 
 debtor. 5 The receiver stands in the place of the judg- 
 ment-creditor. 6 In Olney v. Tanner, 7 after a careful 
 
 1 Osgood v. Laytin, 48 Barb. (N. Y.) 
 Mi:; ; atfi'd •-» Abb. Pr. X. S. (X. Y.) 9 ; 
 Hamlin v. Wright, ',»:! Wis. 492; Bar- 
 ton v. Bosner, .'I Hun (N. Y.) 469 ; 
 Porter v. Williams, 9 X. Y. 142 ; Un- 
 derwood v. Sutcliffe, 77 N. Y. 62; 
 
 Erdall v. Alw 1, 7!) Wis. 1.47X.W. 
 
 Rep. 1 124 : Dunham v. Byrnes. 36 
 .Minn. L06, 30 X. W. Rep. 402. In 
 Mandeville v. Avery, 124 X. Y. 385, 
 '.'»■> N. E. Rep. 9.11, Brown. J., said : 
 "A receiver appointed in supplemen- 
 tary proceedings under the Code is 
 rested \\ itu tin- legal title to all I he 
 personal property of the judgment- 
 debtor, and has the further right to 
 prosecute actions to sel aside all 
 transfers of property made by the 
 debtor to defraud his creditors." s. P., 
 Stephens v. Perrine, 143 N. ^ l?(i. 39 
 N. I-'. Rep. i l. See I Leineman v. I [art, 
 55 Mich. 84, 80 N. \V. Rep. r92 
 
 Pittsburg < iarbon < !o. v. McMil- 
 lm. L19N. Y. 46, 38 N. E. Rep. 530. 
 
 A new receiver (Bowden v. John- 
 son, 107 U. S. 264, 2 S. C. Rep. 246). or 
 an assignee of a bankrupt, may be 
 substituted as plaintiff in the appellate 
 courts. 
 
 4 40 N. Y. 386. In Stephens v. Per- 
 rine, 143 X. Y. 483, 39 N. E. Rep. 11, 
 the courl say : '• It has been decided 
 by this courl that such a receiver can 
 maintain an action of this nature 
 where the assignment or mortgage is 
 void on the ground that it was exe- 
 cuted for the purpose of defrauding 
 creditors, and we think the same prin- 
 ciple reaches the case where the 
 mortj;a.i;e is void because it was not 
 tiled and there was no change of 
 possession." 
 
 See .Manley v. Rassiga, 13 Hun 
 (N. Y.i 290. 
 
 ' Kennedy v. Thorp. .".1 N. Y. 17 1. 
 See Olney v. Tanner, 18 Fed. Rep. 636. 
 
 ■ 10 Fed. Rep. 113; affi'd 18 Fed. 
 Rep. 636.
 
 § u6 i i\ ii;s. 235 
 
 examination of the authorities, 1 the conclusion is reached 
 that a receiver appointed in supplementary proceedings 
 cannot be held to be vested by virtue of his appointment 
 \vith the title to property fraudulently conveyed by the 
 judgment-debtor. The court will refuse to put him sum- 
 marily in possession of the property covinously alienated ; 
 it will not authorize him to meddle with it, and will rel 
 to protect him in so doing. The receiver may, as we 
 have seen, assail the covinous transfer by an action.' 
 Grover, J., said, in Bostwick v. Menck: 3 "He (tin- 
 receiver) acquires no right to the property (fraudulently 
 assigned), by succession to the rights of the debtor ; 
 .... no rights (2. e. of property) other than those of 
 the debtor are acquired. He does not acquire the legal 
 title to such property by his appointment. That is con- 
 fined to property then owned by the debtor ; and the 
 fraudulent transferee of property acquires a good title 
 thereto as against the debtor, and all other persons, except 
 the creditors of the transferrer. The only right of the 
 reciver is, therefore, as trustee of the creditors. The latter 
 have the right to set aside the transfer and to recover the 
 property from the fraudulent holder ; and the receiver is, 
 by law, invested with all the rights of all the creditors 
 represented by him in this respect." 4 
 
 'See Rodman v. Henry, 17 N. Y. 647; Moyer v. Dewey, 103 I". S. 301. 
 
 484; Lathropv. Clapp, 40 N. Y. 333; Where there is an assignee a receiver 
 
 Brown v. Gilmore, 16 How. Pr. (N.Y.) has no standing. Olney v. Tanner, 18 
 
 527; Teller v. Randall, 40 Barb. (N. Fed. Rep. 637. 
 Y.) 242; Field v. Sands, 8 Bosw. ■ i<» X. Y. 383. 
 
 (N. Y.) 685; Bostwick v. Menck, 'In New York the receiver takes 
 
 40 N. Y. 383; Becker v. Torrance, 31 title to the debtor's real property bj 
 
 N. Y. 637 ; Mandeville v. Avery, 124 virtue of his appointment. Cooneyv. 
 
 N. Y. 376, 26 N. E. Rep. 951. I loouey, 65 Barb. (N. Y 525 : Fessen- 
 
 - It is only through the instrumen- den v. W Is, 3 Bosw. V ST.) 556; 
 
 tality of an asssignee. that a creditor Bostwick v. Menck, 10 N. Y. 384 ; tin- 
 can reach property fraudulently derwood v. Sutcliffe, 77 N. Y. 63. 
 transferred by a bankrupt prior to ad- See Stephens v.Meriden Britanni 
 judication. Olney v. Tanner, 18 Fed. 13 App. Div. (N. Y 372, 13 N. Y. 
 Rep. 637 ; Glenny v. Langdon, 98 U. Supp. 226. 
 S. 20 ; Trimble v. Woodhead, 102 U. S.
 
 236 
 
 RECKIVEKS. 
 
 Il6 
 
 In New Jersey, a receiver, appointed by virtue of the 
 statute providing a method for discovering the concealed 
 property of a judgment-debtor, 1 can, in his official charac- 
 ter, exhibit a bill in chancery to annul sales of such prop- 
 erty or encumbrances upon it, on the ground that such 
 sales or encumbrances are in fraud of creditors. ~ In the 
 case first cited, Parker v. Browning, 3 is quoted with appro- 
 val. In the latter case, in speaking of the course to be 
 taken, when property, which is claimed by a receiver 
 appointed by the chancellor, is in the hands of a third 
 party, who claims the right to retain it, Chancellor Wal- 
 worth says : " The receiver must either proceed by suit, 
 in the ordinary way, to try his right to it, or the com- 
 plainant should make such third person a party to the 
 suit, and apply to have the receivership extended to the 
 property in his hands." 4 A sequestrator or receiver of 
 personal property and rents appointed in an action may, 
 under the direction of the court, test a fraudulent aliena- 
 tion of property, 5 though this question is much confused 
 in New York. 1 ' 
 
 1 Revision of 1877, p. 393. 
 
 2 Miller v. Mackenzie, 29 N. .1. Eq. 
 292. But compare Higgins v. Grilles 
 heiner, 2G N. J. Eq. 308. 
 
 s I'uige (N. V.i 1588. 
 'See Carr v. Hilton, 1 Curt. C. C. 
 280 ; Hamlin v. Wright, 23 Wis. 492 ; 
 Bostwich v. Menck, 4 Daly (N. Y.) 
 68. Willard, .1.. in Porter v. Wil- 
 liam-, '.) N. Y. 142, 150, said : "The 
 ait which the receiver seeks to avoid 
 
 in this case was an illegal act of the 
 debtor. The object of the action is 
 to set aside an assignment made by 
 the debtor with intent, as is alleged, 
 to defraud the creditor under whose 
 judgment and execution 1 he plaintiff 
 was appointed receiver, and t be other 
 creditors of the assignor. Such con- 
 veyance was void at common law, 
 and is expressly forbidden by the 
 1 ami.. h j. void as against the 
 
 creditors of the party making it, 
 though good as between him and his 
 grantee. The plaintiff, representing 
 the interests of the creditors, has a 
 right to invoke the aid of the court to 
 set aside the assignment. He stands 
 
 in this respect, in the same condition 
 as the receiver of an insolvent corpo- 
 ration, or as an executor or adminis- 
 trator, and like them can assail the 
 illegal and fraudulent acts of the 
 debtor whose estate be is appointed to 
 administer." 
 
 See Donnelly v. West, 17 Hun (N. 
 Y.) 564; Foster v. Townshend, 2 Abb. 
 
 N . ( '. ( N. Y. ) 29. 
 6 See Foster V. Townshend, 68 X. 
 
 Y. 203 : Ogden v. Arnot, 'Jit Hun (N. 
 
 Y.) 150; Keeney V. Home Ins. Co., 71 
 
 X. Y. 396; Fincke v. Funke, 25 Hun 
 
 (X. Y.) 618.
 
 § 11/ 
 
 RECEIVERS i IF CORP< (RATIONS. 
 
 ?37 
 
 § 117. Receivers of corporations. - Receivers of insolvenl 
 corporations, when suing for portions of the capital, rep- 
 resent creditors, 1 and not the corporation,'' and are 
 clothed with other rights than those which the corpora- 
 tion possessed. 3 It is a fundamental principle, upon 
 which the American cases at least proceed, that the capi- 
 tal of a corporation, especially after insolvency, is a trust 
 fund for the benefit of creditors. 4 The same is true cf 
 
 1 Van Fleet, V. C, in Graham lint- 
 ton Co. v. Spielmann, 50 N. J. Eq. 
 124, said : " The receiver of an insol- 
 vent corporation becomes, as soon as 
 he qualifies, invested, by force of the 
 statute, with full power to demand, 
 sue for and take into his possession 
 all of the property of every descrip- 
 tion belonging to the corporation, and 
 to convert the same into money. 
 .... From that time forth its 
 property is. by law, appropriated ex- 
 clusively and irrevocably to the pay- 
 ment of its debts. Power is conferred 
 on its receiver to take possession of 
 all of its property and to convert it 
 into money, to the end that the 
 money thus obtained may be dis- 
 tributed among its creditors. No 
 other application or disposition can 
 be made of the money realized from 
 its property. It must be paid to its 
 creditors, and in distributing it 
 among unsecured creditors, the statu- 
 tory direction is that they must be 
 paid equally in proportion to their 
 respective debts.*' 
 
 2 Osgood v. Ogden, 4 Keyes (N. Y.) 
 
 70 ; Ruggles v. Brock, Hun (N. Y. ) 
 164; Sawyer v. Hoag, 17 Wall. G10. 
 619 ; Webster v. Upton, 91 U. S. 65, 
 
 71 ; Chubb v. Upton, 95 U. S. 665, 
 667; Dayton v. Borst, 31 N. Y. 435, 
 Wait on Insolv. Corps. Chap X. 
 
 3 Ruggles v Brock, 6 Hun (N. Y.) 
 164; Pittsburg Carbon Co. v. McMil 
 lin. 119 N. Y. 46. 23 N. E. Rep. 530 ; 
 Graham Button Co. v. Spielmann, 50 
 
 N. J. Eq. 120, 24 Ail Rep. 571 ; Upton 
 v. Englehart, 3 Dillon, 196, 503 ; Os- 
 good v. Ogden, 4 Keyesi X. Y.) 70 8H , 
 Porter v. Williams, 9 N. Y. 142. L49 ; 
 Osgood v. Laytin, 3 Keyes (N. y.)521; 
 Gillet v. Moody, :: N. Y. 179. A cor 
 poration is like a natural person in 
 that any conveyance of its property 
 without authority of law, and in 
 fraud of existing creditors, is void as 
 against them. Waba'sh, St. L. & P. 
 R. R. Co. v. Ham, 114 U. S. 591. 5 S. 
 C. Rep. 1081; Richardson v. Green, 
 133 U. S. 44, 10 S. C. Rep. 280. 
 
 4 Wood v. Duinmer, 3 Mason, 308 ; 
 Sawyer v. Hoag, 17 Wall. 610; Batch 
 v. Dana. 101 U. S. 205 : Dayton \. 
 Borst, 31 N. Y. 435; New All.an> 
 v. Burke, 11 Wall. 96, 106: Upton v. 
 Tribilcock, 91 U. S. 45, 17 ; Bartletl v. 
 Drew, 57 N. Y. 587; Lamar [ns. I ... 
 v. Moore, 1 Am. Insolv. Rep. 62 ; 
 Wait on Insolv. Corps., £ 1 12 : Vance 
 v. McNabbCoal. etc. Co., 92Tenn. 17. 
 20 S. W. Rep. 424 ; Hospes \. North- 
 western Mfg., etc. Co., 48 .Minn 1 ; I, .Mi 
 N.W. Hep. 1117: Bradley v. Converse, 
 3 Fed. Cases, 1143; Richardson \. 
 Green, 133 U. S. 30, 10 S. C. Rep. 280; 
 Clark v. Bever, L39 U. S. 109, lis « . 
 hep. 468; Fogg v. Blair, 139 D S. 
 125, 17 S. C. Rep. 176 . Cole v. Miller- 
 ton Iron Co . L33 X. Y. Mis, 30 X. E. 
 Rep. si:; Handle} v. Stutz, 189 U. 
 S. 427, 11 S. C. Rep. •->:;<); Buck v. 
 Ross. 68 Conn. 31 ; Crandall v. 
 Lincoln, 52 Conn. 73, 91.
 
 238 FOREIGN RE< I.I \ IKS. § I I S 
 
 unpaid subscriptions. 1 It is foreign to our purpose to 
 enter into the wide field of corporation law relative to 
 insolvency, 2 but the principles of these cases are valuable 
 as showing that the representative, receiver, 3 or liquidator 
 of a corporation is, like an administrator, assignee, or 
 receiver of a debtor, vested with the status of a creditor. 
 Where a statute creates a cause of action in favor of cred- 
 itors who are within certain prescribed conditions a 
 receiver cannot enforce it. 4 The courts of the United 
 States will not ordinarily interfere with a receiver 
 appointed in the State court. 5 It may be observed here 
 that the power of the comptroller of the currency to wind 
 up the affairs of a national bank in certain contingencies 
 does not exclude the authority of a competent tribunal 
 to appoint a receiver in other cases. 
 
 r? 118. Foreign receivers.— In Booth v. Clark, 7 the 
 court says: "A receiver is appointed under a creditor's 
 bill for one or more creditors, as the case may be, for 
 their benefit, to the exclusion of all other creditors of the 
 
 debtor, if there be any such Whether appointed, 
 
 as this receiver was, under the statute of New York, or 
 under the rules and practice of chancery, as they may be, 
 his official relations to the court are the same. A statute 
 appointment neither enlarges nor diminishes the limita- 
 tion upon his action. His responsibilities are unaltered. 
 Under either kind of appointment he has at most only a 
 passive capacity in the most important part of what it 
 may be necessary for him to do, until it has been called 
 by the direction of the court into ability to act. He has 
 
 Fogg v. Blair, 139 U. S. 125, II S. 'Farnsworth \. Wood, !)l N. Y. 
 
 C. Rep. 476 ; < laniden \. Stuart, 308. 
 
 Ml U. s. 104, 12 s. C. Rep. 585. Porter v. Sabin, 149 U. S. 480, 13 
 
 Wail "ii [nsolvenl Corpora- K. »'. Rep, 1008. 
 
 tions. Baker, Voorhis & Co., 1888. 'Irons v. Manufacturers' Nat, 
 
 Pittsburg Carbon Co. v. McMillin, Bank, 6 Biss. 301. 
 
 119 N. Y. Hi. 33 N. I-:. Rep. 580. LI Bow. 338.
 
 § 1 18 I ' iREIGN RE( l.l\ ERS. 
 
 no extra-territorial power of official action; none which 
 the court appointing him can confer, with authority to 
 enable him to go into a foreign jurisdiction to take p 
 session of the debtor's property ; none which can give 
 him, upon the principle of comity, a privilege to sue in a 
 foreign court or another jurisdiction, as the judgment- 
 creditor himself might have done, where his debtor may 
 be amenable to the tribunal which the creditor may 
 seek." 1 So in Brio-ham v. Luddin^ton, 2 which was a bill 
 filed in the southern district of New York by a receiver 
 appointed on a judgment-creditor's bill in the eastern dis- 
 trict of Wisconsin, the suit was dismissed. 3 To the sugf- 
 gestion of counsel that, by the statutes of Wisconsin, 
 receivers appointed on creditor's bills are vested with 
 full title, and have full authority to maintain suits, which 
 the Circuit Court of the United States for the southern 
 district of New York ought to recognize, Mr. Justice 
 Woodruff said: "(0- This receiver was appointed 
 under and by virtue of the general power of courts of 
 equity, and with such effect only as is due to the order 
 of the court making the appointment. He was not 
 appointed under or by virtue of any statute. (2 ). The 
 statutes of the State of Wisconsin cannot enlarge or 
 alter the effect of an order or decree of the Circuit Court 
 of the United States, nor enlarge or modify the jurisdic- 
 tion of that court or its efficiency." 4 A doctrine: is 
 growing up in favor of recognizing foreign receivers by 
 comity. 5 
 
 1 See especially Olney v. Tanner. 'National Trust Co. v. Miller, 33 
 
 10 Fed. Rep. 104, and cases cited. N. J. Eq. 159 ; Falk v. Janes, 49 N. J. 
 
 2 12Blatchf. 237. Eq. 489, 23 Ail. Rep. 813; Bidlack v. 
 
 ■'■ See Hope Mutual Lif e Ins . Co . v . Mason, 26 X. J. Eq. 230; National 
 
 Taylor, 2 Rob. (N. Y.) 278, 284. Trust Co. v. Murphy. 30 N. J. Eq. 
 
 4 Citing Payne v. Hook, 7 Wall. 408. Compare Matter of Wait< . 99 
 
 425 N. Y. 433.
 
 ?40 
 
 CRE] >IT< >RS l IB C< »RP< ►RATH >NS. 
 
 II 9 
 
 ?j 119. Creditors of Corporations. — Creditors of an indebted 
 corporation may have the aid of a court of equity against 
 the corporation and its debtors to compel the collection 
 of what is due, and the payment of its debts, 1 and the 
 winding up of its affairs. 2 In Graham v. Railroad Co. 8 
 will be found an important discussion, by the learned Mr. 
 Justice Bradley, of the effect of a voluntary alienation of 
 property by a corporation as affecting subsequent cred- 
 itors. In this case counsel urged that the property of a 
 corporation was a trust fund for creditors, 4 and that this 
 meant all creditors becoming such during the life of the 
 corporation. The court, however, could discover no 
 reason why the disposal by a corporation of any portion 
 of its assets should be questioned by subsequent creditors 
 of the corporation, any more than a like disposal by an 
 individual of his property should be so attacked. 5 This 
 would seem to put corporations and individuals upon the 
 same footing as to voluntary alienations, as regards a 
 certain class of creditors; but the distinction must not be 
 overlooked that the corporation itself may recover the 
 property, where the voluntary or fraudulent transfer was 
 effected by faithless or corrupt officials. 
 
 Creditors of a corporation who have exhausted their 
 
 1 Ogilvie v. Knox [ns. Co., 22 Bow. 
 380; 2d appeal, 2 Black, 539; Hatch 
 v. Dana, 101 U. S. 205. 
 
 Tradesman I'ul>. ( !o. v. Knox- 
 ville Car Wheel Co., 95 Tenn. 634, 32 
 S. W Rep. 1097. 
 
 »102 D". S. 148; Montgomery Web 
 Co. v. Dienelt, 133 Pa. St. 585, 19 
 Ml Rep. 128. 
 
 1 Bee Railroad < !o. v. I Coward, ~< 
 Wail. 392; Sawyer v. Hoag, 17 Wall. 
 610 Dayton v. Borst, 31 N. Y. 135 ; 
 Dpton v. Tribilcock, 91 U. S. 45, 17 ; 
 Marti, it v. Drew, 57 N. Y. 587. In 
 I Blair, 139 D". S. 126, 11 S. C. 
 
 Rep. 476, the court says: "The princi- 
 
 ples which, by established law, govern 
 the relations between a corporation 
 and its creditors and stockholders, 
 and the management <>f thecorporate 
 property, would be <>f little value, if 
 the corporation, by its directors, 
 could sell or dispose of its assets to 
 the prejudice of creditors and stock- 
 holders under such circumstances, <>n 
 such terms and at such prices as indi- 
 cated, upon the lace of the trans- 
 action, thai they were being squan- 
 dered recklessly or fraudulently in 
 disregard <>f the trust committed to 
 
 them." See g 117. 
 
 See < lhap. VI.
 
 § 120 SHERIFF 
 
 241 
 
 remedy at law, may proceed in equity to compel a stock- 
 holder to pay up a balance due upon a subscription. 1 So 
 judgment-creditors of a corporation may follow corporate 
 assets into the hands of stockholders amongst whom 
 it was divided before the debts of the association were 
 paid. 2 Where a corporation has changed its name or 
 assumed a new organization to evade its liabilities, cred- 
 itors may, as against stockholders who are not purchasers 
 for value without notice, pursue the assets. 5 
 
 § 120. Sheriff. — When process comes to his hands the 
 sheriff may undoubtedly attach any property which has 
 been transferred by an alleged fraudulent assignment, 
 and hold it subject to the decision of the court upon the 
 question of fraud. In such a case the sheriff must defend 
 the seizure in behalf of the creditors, and show that the 
 assignment was fraudulent as to them. As to creditors 
 the title to such property does not pass if the assignment 
 is fraudulent, but it remains liable to seizure to satisfy 
 their debt. 4 The case is different when the assigned 
 property has been sold by the vendee and its identity 
 destroyed ; the proceeds cannot be attached or levied 
 upon by the sheriff as the debtor's property. Merely 
 setting aside the assignment would not vest the title to 
 such proceeds in the debtor. The only remedy of the 
 creditor in such a case is to institute a creditor's suit, and 
 fasten a trust upon such proceeds for the benefit of cred- 
 
 1 Hatch v. Dana, 101 U. S. 205; 3 Montgomery Web Co. v. Dienelt, 
 
 Ogilvie v. Knox Ins. Co., 22 How. 380; 133 Pa. St. 597 : Hibernia tns. < !o. v. 
 
 Pierce v. Milwaukee Constr. Co., 38 St. Louis, etc. Transportation Co., 13 
 
 Wis. 253 ; Gogebic Investment Co. v. Fed. Hop. 516. 
 
 Iron Chief Min. Co., 78 Wis. 427, 47N. l See Kelly v. Lane, 13 Barb. V 
 
 W. Rep. 726. Y.) 610. Compare Greenleaf v. .Mum 
 
 2 Bartlett v. Drew, 57 N. Y. 587; ford, 4 Abb. Pr. N. S. (N. Y 184; 
 
 Missouri, L. M. &S Co. v. Reinhard, Cross v. Daly. 5 Daly (N. Y 
 
 114 Mo. 218, 21 S. W. Rep. 488 ; Fort Rinchey v. Strj ker, 28 N. Y 45 ; l 
 
 Payne Bank v. Alabama Sanitarium v. Van Hoesen, 26 Hun (N. Y 316. 
 
 Co., 103 Ala. 358, 15 So. Rep. 618. See § 81. 
 16
 
 242 
 
 111 tRS 
 
 WIDOW. 
 
 121 
 
 itors, which necessarily confirms the legal title of the 
 assignees to the assigned property, instead of annulling 
 it, as would be the case if the sheriff had seized the 
 assigned property instead of the proceeds. 1 
 
 >J 121. Heirs — Widow. — The heir of a grantor cannot 
 impeach his ancestor's deed on the ground that it was 
 made in fraud of creditors, for he can claim no right 
 which the ancestor was estopped from setting up. "This 
 rule is a penalty imposed by the law for the prevention 
 of frauds and for the protection of subsequent pur- 
 chasers." ~ This rule applies even where the grantee was 
 not a participant in the fraud, as where the title was taken 
 in his name originally without his knowledge. 3 The 
 statutes avoiding fraudulent transfers are, as we have 
 shown, 4 available only to the person or persons who might 
 be delayed, hindered, or defrauded. 5 The heir at law is 
 
 1 Lawrence v. Bank of the Repub- 
 lic, 35 X. V. 320. See Thurber v. 
 Blanck,50 X. Y. 83; Adams v. David- 
 Bon, in X. V. 309, 315. Sec § 81. 
 ( lompare < (lark v. Foxcroft, 6 Me. 20G, 
 and Quincy \. Ball, 1 Pick. (Mass.) 
 357, 11 Am Dec. [98. In Robertson v. 
 Sayre. L34 X. Y. 99, 31 X. E Rep. 250. 
 where Follett, < !h. J., said ; " D. H. 
 
 Robertson having procured these lots 
 to be conveyed to Messenger for the 
 purpose of defrauding his creditors, 
 bad no Legal estate in then] which 
 
 could be reached by execution <( tar- 
 field v. Hat maker. 15 X. Y. 475) or 
 which on his death descended to his 
 heirs (Moseley \. Moseley, 15 Id. :;:;! ; 
 Wait on Fraud. Convey, g 121. See 
 also 1 R, S. 728, §? 50, 51, 52 ; Under- 
 wood v, Sutcliffe. 71 X. Y 58 ; Brew- 
 v. Power, H> Paige, 562 ; Bates v. 
 Lidgerwood Mfg l !o 50 Hun |X. Y.] 
 120 ; Hamilton v. < 'one, 99 .Mas-,. 478), 
 This rule in a penalty impose 1 by the 
 law for t he prevention of frauds and 
 for the protection of subsequenl pur- 
 
 chasers (Revisers' notes to sections 
 cited), and the reason for its applica- 
 tion is not weakened in case the 
 grantee, as in the case at bar, was not 
 a participant in the fraud." 
 
 * Robertson v. Sayre, 134 X. Y. 99; 
 .Moseley V. Moseley, 15 X. Y. 334. 
 See Vance v. Schro.ycr, 79 Ind. 380; 
 Robertson v. Sayre, 134 N. Y. 9<J. 31 
 N. E. Rep. 250. 
 
 :; Robertson v. Sayre, 134 X. Y. 99, 
 31 X. E. Rep. 250, citing the text. 
 
 1 See Chap 111 ; also§ 107. 
 
 See Dutton v. Jackson, 2 Del. Ch 
 
 si; : Morrison v. At well, 9 Bosw, iX. 
 
 \.\ 503 : Powers v. Graydon, 10 Bosw. 
 
 (N. Y.) 630 See infra, Chap. XXVI. 
 
 Legatees. — A Legatee cannot avoid, 
 
 OH the ground of fraud, a transaction 
 
 which was binding on bis testator. 
 Guidry v. Grivot. 2 Mart. X s. (La.) 
 13, 1 1 Am. Dec. L93 ; hut in Addison 
 
 v. Bowie, 2 Bland's Ch. (Md.) 606, it 
 
 is said, a legatee may in certain cases 
 file a ere ditor's bill.
 
 § 122 HUSBAND VND WIFE. 
 
 not a proper party to enforce an alleged trust in personal 
 property in favor of an intestate. 1 It may be here 
 observed, though possibly extraneous to our general 
 theme, that one of several heirs may maintain a suit to 
 set aside a conveyance procured from the ancestor by 
 means of the fraud and undue influence of the grantee 
 
 o i 
 
 and that the other heirs may testify in the suit as to 
 personal transactions with the deceased. 2 
 
 A widow cannot sue in chancery to have her husband's 
 lands sold, her dower right satisfied, and the balance 
 applied to creditors; 3 nor can a widow who has know- 
 ingly joined in a fraudulent deed maintain a bill to set 
 the transfer aside. 4 
 
 § 122. Husband and wife. — The relationship of husband 
 and wife assumes considerable prominence in our subject, 
 and will be specially treated We may here observe that 
 a husband compelled to pay ante-nuptial debts of his wife 
 becomes her creditor, and as such is entitled to set aside 
 fraudulent conveyances made by her in contemplation of 
 marriage ; 5 so also a wife may attack conveyances exe- 
 cuted by her husband with intent to defeat her right of 
 dower which was about to attach, 6 or pending an action 
 for support, 7 and is, when a creditor of the husband, 
 
 1 Ware v. Galveston City Co., Ill multiplicity of suits, and accumula- 
 
 U. S. 170, 4 S. C. Rep. 337. In Mc- tion of costs, which, where the cred 
 
 Call, Adm'r, v. Pixley, 48 Ohio St. itors are numerous, is a matter of 
 
 379, 388, 27 N. E. Rep. 887, the court importance." 
 
 says :" The statute which permits the 2 Smith v. Meaghan, 28 Bun V 
 
 sale, by an administrator, of lands Y.) 423: Ho bar I v. Bobart, 62 N. 
 
 which his intestate had conveyed in Y. 80. 
 
 fraud of creditors, was not designed for Bull v. Hull, 26 W. Va I. 
 
 the benefit of the heirs, or distributees ; Barnes v. Gill, 21 111. App. 129. 
 
 of the estate. It was enacted solely 5 Wester man v. Westerman, 25 
 
 in the interest of the creditors, whose Ohio St 500; affi'g 9 Am. Law Reg. 
 
 remedy it advances, by enabling the (N. S.) 690. 
 
 administrator to accomplish in a sin- '' See § 70 ; also < hap. XX. 
 
 gle proceeding, what formerly might ' Tyler v. Tyler, 126 111. 525, 21 X. 
 
 require many actions, thus avoiding E. Rep. 616.
 
 -44 
 
 T( IRT CREDITOR. 
 
 12 
 
 entitled to file a creditor's bill. 1 "It seems to be well 
 settled that, pending a divorce suit, a wife asserting a 
 just claim for alimony is, within the meaning of statutes 
 prohibiting fraudulent conveyances, to be deemed a 
 creditor." ~ 
 
 ^ 123. Tort creditor. — A right to damages arising from a 
 tort is within the protection of the statute 13 Eliz. ch. 5, 3 
 and a conveyance made to defeat such right will be set 
 aside. 1 If the intent was in part to evade fines upon 
 criminal prosecution, and also to evade the payment of 
 any judgment which might thereafter be obtained in the 
 civil action, the conveyance would be wholly fraudulent. 
 It cannot be upheld in part and avoided in part. 5 Hence 
 it has been decided that an action at law, although in viale- 
 ficio, is within the meaning of the statute which protects 
 "creditors and others" against conveyances made to 
 defraud them of their just and lawful actions, suits, debts, 
 
 1 Houseman v. Grossman, 177 Pa. 
 St. MS3, 35 At!. Rep. 7:J6 ; Chase v. 
 Chase. 105 Mass. 385. 
 
 •I, nit v. Kaiser, 61 Tex. 665, 
 67::, citing Feigley v. Feigley, 7 Md. 
 538; Clagetl v. Gibson, 3 ('ranch. 
 C. C 359; Boils v. Boils, 1 Goldw. 
 (Tenn. ) 285; Morrison v. Morrison, 
 19 X. II. 69; Turner v. Turner, 44 
 A la 438 ; Brooks v. i Jaughran, 3 
 Head (Tenn.) 165; Bouslough v. 
 Bouglough, 68 Pa. St. 495 ; Frakes v. 
 Brown, 'J Blackf (Ind.) 295. Bui see 
 Fein v. Fein, :; Wyoming, 163, 13 
 I 'a-. Rep. 7'.». 
 
 Posl v. Stiger, 29 X .1. Eq. 558. 
 See Lillard v. McGee, 4 Bibb. (Ky.) 
 165 : Jackson \ Myers, 18 Johns. I X. 
 ■ Farnsworth v Bell, 5 Sneed 
 (Tenn. •■>-'\ ; Langord v. Fly, 7 Humph. 
 (Tenn.) 585 : Walradl v. Brown, '< III. 
 
 4 Scott v. Hartman, 26 N. J. Eq. 
 DO; Boid v. Dean, 48 N. J. Eq. 
 203, 21 At I. Rep. 618, citing the 
 text ; .Jackson v. Myers, IS Johns. 
 (N. Y.) 42."); Clapp v. Leather- 
 bee. IS Pick. (Mass.) 138; Fox v. 
 Hills, 1 Conn. 295; Pendleton v. 
 Hughes, 65 Barb. (N. Y.i 136; Barling 
 v. Bishopp, 29 Beav. 1 1 T : Shean v. 
 Shay, 42 End. 375 ; Bongard v. Block, 
 SI III. 186; Weir v. Day, 57 Iowa, 87; 
 ("order v. Williams, 40 Iowa, 582; 
 Harris v. Harris. 23 Grafct. (Va.) 737 ; 
 Hoffman v, Junk, 51 Wis. 613, 8 X. 
 W. Rep. 493; Westmoreland v. Pow- 
 ell, 59 Ga. 256; Prouty v. Prouty, 4 
 Wash. 174, 29 Pac. Rep. 1049 ; Kain v. 
 Larkin, I App. Div. <N. Y.) 209,38 N. 
 Y. Supp. 546. Bui compare Evans v. 
 Lewi., 30 Ohio St. II. 
 
 Weir v. Day. 57 Iowa 87, 10 N. 
 W. Rep. 304.
 
 §§ 124, I2 5 OVERSEER OF THE POOR. 2 | ; 
 
 accounts, damages, penalties, forfeitures, and demands. 1 
 The judgment-creditor in an action of trespass has a 
 judgment for such a cause of action as justifies his attai Ic- 
 ing, in some form, any conveyance made by the defend- 
 ant pending the suit, as being fraudulent against him, and 
 should not be prevented by injunction from putting him- 
 self into such a position that he may have the question of 
 the bona fides of the grantee's purchase tested in a court 
 of law and before a jury through an action of ejectment. 2 
 
 § 124. Overseer of the poor. — In New York an overseer 
 of the poor has no standing in court before judgment to 
 impeach the voluntary deed of the father of a lunatic 
 child, upon the theory that the conveyance was executed 
 with the intention of imposing the burden of supporting 
 the son upon the town. It seems to be clear that an 
 overseer cannot secure equitable relief setting aside a 
 fraudulent transfer, if he is not a creditor by judgment 
 or by simple contract ; and no liability has been estab- 
 lished in his favor, by adjudication or otherwise, against 
 the alleged fraudulent grantor. 5 
 
 §125. Creditors having liens. — A conveyance is not 
 considered fraudulent as to a creditor whose debt 
 is secured by judgment or other lien upon the land 
 transferred. The grantee necessarily takes subject to 
 the lien, and the creditor may pursue the land in the 
 
 1 Scott v. Hartman, 26 N. J. Eq. 90 ; peal.C! Pa. St. 426 ; M e v. Cord, 
 
 Jackson v. Myers, 18 Johns. (N. V.) 14 Wis. 413; Heywood v. (it\ of 
 
 425. See Leukener v. Freeman, Buffalo, 14 N. 5T. 539 ; Townsend v. 
 
 Freem. Ch. Rep. 236; Fox v. Hills, Mayor of New York, 77 X V. 542; 
 
 1 Conn. 295; Barling v. Bishopp, 29 Van Doren v. Mayor, etc. 9 Paige (N. 
 
 Beav. 417. See § 110. Y.) 388. A conveyance made !• 
 
 3 Welti e v. Scotten, 27 Alb. L. J. cape payment of fines can be attacked 
 
 337, 59 Md. 72. See Gebhart v. Mer- by the State. State v. Burkeholder, 
 
 feld, 51 Md. 325 ; Bockes v. Lansing, 30 W. Va. 593, 5 S. E. Rep t39 
 
 74 N. Y. 441; Freeman v. Elmen- 3 Bowlsby v. Tompkins, 18 Hun 
 
 dorf, 7 N. J. Eq. 475; Winch's Ap- (N. Y.) 220.
 
 2 4 6 
 
 PURCHASER REMOVING [NCUMBRANCES. 
 
 126 
 
 same manner as if it had been conveyed to one who had 
 purchased in good faith for a full consideration. He may 
 follow the land irrespective of changes in the title, whether 
 honest or dishonest. A judicial sale upon his lien vests 
 in the purchaser the title which the debtor had when the 
 lien attached, and of course divests the title of the 
 debtor's grantee. The creditor, therefore, stands in no 
 need of aid from a court of equity to revoke the debtor's 
 transfer. 1 This question was considered in Armington 
 v. Rau, 2 in which Haak's Appeal 3 was cited with 
 approval, and the court further said : '' The debtor con- 
 veys subject to the lien. He has a right, upon such con- 
 dition, to sell or give away his land, and if he does so 
 fraudulently, the grantee's title is good against all the 
 world, except creditors and persons intended to be hin- 
 dered, delayed or defrauded. A prior lien creditor is not 
 such person. The conveyance, whether bona fide or 
 fraudulent as respects creditors who have no liens, is 
 no obstruction or hindrance to the enforcement of pay- 
 ment of the prior lien." 
 
 § 126. Purchaser removing incumbrances. — A purchaser 
 at execution sale takes the creditor's right to avoid all 
 fraudulent conveyances and incumbrances, 1 and may file 
 a bill in equity for that purpose. 5 A creditor who has 
 
 Haak's Appeal, LOO Pa. St. 62 ; 
 Zuver v. (lark. 104 Pa. St. 326. 
 LOO Pa. St. L68. 
 LOO Pa. St. 62. 
 
 1 ish v. Mace, 'J ( Jray | Mass. ) 
 
 Orendorf v. Budlong, 12 Fed. 
 
 Rep. .'I : Hildretb v. Sands, -,' .(..litis. 
 el.. (N. Y.) 35 : Besl v. Staple, 61 N. 
 Y. 78 ; ( iallniaii \ . Perrie. 17 Miss. 
 L31. < Iliief Justice Sherwood sai.l : 
 
 ■■ Tli.- law is well -,.-tt Led in tliis State 
 
 that, where a debtor conveys liis la ml 
 with tin- fraudulent design above 
 mentioned, a resulting trust is thereby 
 
 created in favor of his creditors, and 
 is the subject of execution sale Ami 
 
 it Is equally well settled, that a pur- 
 chaser at such sale will occupy as 
 
 advantageous a position as t hough lie 
 were a creditor, when proceeding 
 
 to set aside the debtor's conveyance 
 ..11 the -round of fraud." 1,'ylaml v. 
 Callison, Til .Mo. r>14. 
 
 (e.uld v. Steinburg, 84 111. 170. 
 See Hoxie v. Price. :!1 Wis. 82-89. 
 It appeared in this action that a deed 
 of lands from defendant to a third 
 person, and from him hack to the
 
 § 127 
 
 CREDITORS l »PP< (SING WILL. 
 
 
 obtained judgment and issued execution, may seize and 
 sell the property of his debtor, and try the title of any 
 one who sets up a prior lien or incumbrance affected with 
 usury. 1 So a conveyance of property gives to the 
 grantee or assignee the right to tile a bill to annul a 
 previous invalid conveyance made by the same grantor, 2 
 and a judgment-creditor may compel the cancellation of 
 prior judgments against the debtor upon the ground that 
 they have been paid. 3 
 
 § 127. Creditors opposing will.— As a general rule no 
 creditor has the right to oppose the probate of a will. 4 
 
 wife, and a patent of certain other 
 lands to the wife, were considered as 
 fraudulent and void as to the hus- 
 band's creditors. A purchaser of the 
 land, at execution sale under a judg- 
 ment against the hushand, and before 
 becoming entitled to the sheriff's 
 
 d 1, brought a suit to set aside the 
 
 wife's deed and patent and to restrain 
 her from incumbering the land. The 
 suit was upheld upon the theory that 
 the wife, by alienating or incumbering 
 the land to a bona fide purchaser or 
 mortgagee, would absolutely defeat 
 complainant's equitable rights. See 
 Avery v. Judd, 21 Wis. '362 ; Phalen 
 v. Boylan, 23 Wis. 679 ; Wood v. 
 Chapin, 13 N. Y. 509. In Remington 
 Paper Co. v. O'Dougherty, 81 N. Y. 
 481. the complainant was an execu- 
 tion purchaser ; the time for re- 
 demption had expired as to the 
 debtor but not as to other creditors. 
 The purchaser was held to be pos- 
 sessed of an inchoate title and equi- 
 table interest sufficient to maintain an 
 action for the cancellation of instru- 
 ments or incumbrances, which, within 
 the doctrine of courts of equity, are 
 considered as clouds upon title. See 
 Hager v. Shindler, 29 Cal. 4S ; Wag- 
 ner v. Law, 3 Wash. St. 500, 28 Pac. 
 Rep. 1109, 29 Id. 927. In Mulock v. 
 Wilson, 19 Col. 302, 35 Pac. Rep. 532, 
 
 the court says: "A judgment-creditor 
 desiring to set aside a supposed 
 fraudulent deed of real estate may 
 bring his action therefor to test the 
 validity of the deed before attempting 
 to subject the premises to execution 
 sale; or the purchaser, after such sale, 
 may bring his action to remove tin- 
 cloud from the title by cancelling the 
 supposed fraudulent deed, and to re- 
 cover possession of the premises " 
 See Stock-Growers' Bank v. Newton, 
 13 Col. 249, 22 Pac. Rep. 444. 
 
 1 Dix v. Van Wyck, 3 Mill (N. Y.) 
 525; Mason v. Lord, 40 X Y. 186 
 See Post v. Dart, 8 Paige (N Y 639 
 reversed, 7 Hill (N. Y.) 391 ; Thomp- 
 son v. Van Vechten, 27 N Y. 568 
 
 " McMahon v. Allen. :;:. N. Y. 103 . 
 See Dickinson v. Burrell, I. I.' l I'm 
 337. Put compare < lockell v. Taj lor, 
 15 Beav. 103; Anderson v. Radcliffe, 
 D. B. & E. 806 ; Milwaukee ,y M. R. 
 R. Co. v. Milwaukee cV W R R Co., 
 20 Wis. 174 : Prosser v. Edmonds, 1 
 Y. & C. 481 ; French v. Shotwell, 5 
 Johns. Ch. tX. Y.i 555 ; especially, 
 Graham v. Railroad Co . 102 D S. 
 1 56. 
 
 • Shaw v. Dwight, 37 X. Y. 311. 
 
 1 Menzies v. Pulbrook, 2 I lurteis, 
 845; Heilman \ . Jones, 5 Redf. N. 
 V.) 398 : Elme v. Da Costa, 1 Phillim. 
 173.
 
 24K CESTUI QUE TRUST. § 127a 
 
 The right of contest is limited to the heirs at law and 
 next of kin. 1 It may be here observed that, in Fisher v. 
 Bassett, 2 it is said that no debtor of an estate could be 
 allowed " to plead nc ungues administrator in bar of an 
 action for the recovery of a debt due to the estate The 
 greatest confusion and mischief would ensue if such were 
 the law ; for then, wherever delay was desired, every 
 debtor would deny the jurisdiction, and arrest the 
 recovery of a just debt, by embarrassing inquiries as to 
 the decedent's domicil or the place of his death." :i 
 
 § 127a. Cestui que trust. — A cestui que trust is not 
 required to establish his claim by an action at law where 
 he seeks an enforcement of the trust or desires to pro- 
 tect the trust property from unlawful interference. 4 
 
 Taff v. Hosmer, 14 Mich. 249. (N. Y.) 392; Drexel v. Berney, 1 Dem. 
 
 2 9 Leitfl) (Va.) 133. (N. Y.) 163. 
 
 'See Fosdick v. Delafield, 2 Redf. 4 Spelman v. Freedman, 130 N. Y. 
 
 421, 29 N. E. Rep. 765.
 
 CHAPTER VIII. 
 
 PARTIES DEFENDANT. 
 
 § 12tf. Debtor as defendant in credit- 
 ors' actions. 
 
 129. When debtor not necessary de- 
 
 fendant. 
 
 130. Defendants need not be equally 
 
 guilty. 
 181. Fraudulent assignee or grantee 
 
 must be joined. 
 132. Joining defendants. 
 132a. Conveyance pending suit. 
 1326. Bringing in representatives. 
 
 jj 133. Assignee and receiver as de- 
 fendant. 
 L33a. Suing directors 
 
 134. Objection as to non-joinder — 
 
 How raised. 
 
 135. Misjoinder <>f causes of action. 
 
 136. Executors, administrators, heirs 
 
 and legatees. 
 
 137. Trustee and cestui que trust. 
 
 138. Party having lien. 
 
 139. Stockholders. 
 
 § 128. Debtor as defendant in creditors' actions.— The 
 doubts and difficulties incident to the selection or joinder 
 of proper parties in creditors' suits are not restricted to 
 complainants as a class, but, on the contrary, cases of 
 alleged misjoinder and non-joinder of defendants are fre- 
 quently up for adjudication in different forms. The 
 general rule certainly is that all persons whose interests 
 are directly to be affected by a suit in chancery must be 
 made parties, 1 in order to give finality to litigation. 8 
 The general proposition that all persons participat- 
 ing in making a fraudulent conveyance are proper 
 parties to a suit to set the transfer aside may be 
 accepted. 3 " It is a general rule that all parties inter 
 
 1 Christian v. Atlantic, etc, R. R. Co. 
 133 U. S. 241, 10 S. C. Rep. 260; 
 Shields v. Barrow, 17 How. 130, 139 ; 
 Ribon v. Railroad Co's., 16 Wall. 446 ; 
 Williams v. Bankhead, 19 Wall. 563 ; 
 McArthur v. Scott, 113 U. S. 340, 5 
 S. C. Rep. 052; Green v. Mill .aide, 3 
 Abb. N. C. (N. Y.) 156; Lynchburg 
 Iron Co. v. Taylor, 79 Va. 671. 
 
 -First National Hank v. Schuler, 
 153 N. Y. 170. 
 
 8 Miller v. Jamison, 24 N. J. Eq. 41. 
 Swan Land & Cattle Co. v. Frank, 
 
 I is c. S.610, 13S.C. Rep. 691 ; W I 
 
 v. Sidney Sash, etc. Co., 92 Bun (N. 
 Y.)35 : 37 N. Y. Supp B85 Watts v. 
 Wilcox. 22 Civ. Pro. (X. Y. 164, L8 
 \ Y. Supp. 192 ; Welsh v. Solen-
 
 ; 
 
 I 'I- BTOR AS DEFENDAN I. 
 
 § 128 
 
 ested in a controversy, or who may be affected by a 
 decree rendered therein, should be made parties ; all who 
 are nominally or really interested may therefore be joined 
 although the interests of all may not be affected alike by 
 the relief which may be granted." 1 The burden of secur- 
 ing the presence of the necessary parties rests upon the 
 plaintiff. 8 Let us briefly look through the authorities. 
 The question of the necessity of joining the grantor 
 or debtor as a party defendant in an action brought 
 by a creditor to secure a discovery of assets, or 
 cancel a fraudulent conveyance, is involved in 
 some obscurity and confusion, and the authorities 
 relating to the subject must be carefully distinguished 
 and classified. Prof. Pomeroy says, 3 that " in an action 
 by a judgment-creditor to reach equitable assets of the 
 debtor in his own hands, or to reach property which has 
 
 berger, 85 V.-i. 444, 8 S. E. Rep. 91 ; 
 Mahler v. Schmidt, 43 Hun (N. 
 V. ) "314. In Mahr v. Norwich Union 
 Fire Ins. Soc, 127 N. Y. 460, 28 N. 
 K. Rep. 391, the court say: "There 
 is an essential difference between the 
 practice at law and in equityin deter- 
 mining who are proper and necessary 
 parties. Story, in his work on Equity 
 Pleadings (§ 72), says that two gen- 
 eral principles control courtsof equity 
 in this respect : I. That the rights of 
 in. man Bhall l»e finally decided unless 
 he himself is present, or at least lias 
 had a lull opportunity to appear and 
 vindicate his rights : 2. That when 
 a decision is made upon any particu- 
 iai subject-matter, the rights of all 
 
 persons whose interests are imi li- 
 
 ately connected with thai decision 
 and affected by it, -hall be provided 
 for as far as they reasonably may be. 
 The learned author adds : ' It is I he 
 '■"ii^tant aim of courts of equity to do 
 complete justice, by deciding upon 
 and settling the rights of all persons 
 
 interested in the subject-matter of the 
 suit, so that the performance of the 
 decree of the court may be perfectly 
 safe to those who are compelled to 
 obey it, and also, that future litigation 
 may be prevented.' As Lord llard- 
 wicke once said, all persons ought to 
 be made parties who are necessary to 
 make the determination complete and 
 to quiet the question (Poore v. Clark, 
 2 Atk. 515). Not only all persons 
 whose rights may be affected by the 
 judgment should be brought into 
 court, but all whose presence is essen- 
 tial to the protection of any party to 
 the action (Gray v. Schenck, -1 N. Y. 
 460; Russell v. Clark, 7 Cranch, 69, 
 98; Picquet v. Swan, 5 .Mason, 561 ; 
 Fell v. Brown, 2 Brown's ( !h. 218)." 
 
 1 Raynor v. Mintzer, <',; Cal. 164, 
 7 I'ae. Rep. 431. 
 
 - .Mahr v. Norwich Union Fire Ins. 
 Soc, 127 N. Y. 452, SH N. E. Rep. 391. 
 
 'Pomeroy on Rei lies and Re- 
 medial Rights, .s' 347.
 
 § 128 DEBTi IR A.S DEFENDAN l . 25 I 
 
 been transferred to other persons, or property which is 
 held by other persons under such a state of facts that the 
 equitable ownership is vested in the debtor, the judg- 
 ment-debtor is himself an indispensable part)- defendant, 
 and the suit cannot be carried to final judgment without 
 him." This statement of the matter is, as we shall presently 
 see, entirely too general and sweeping. In New York the 
 necessity for making the debtor a party defendant is made 
 to depend upon the nature of the particular proceeding. 
 In Miller v. Hall 1 the action was brought to have an 
 assignment of a bond and mortgage made by the debtor 
 to the defendant declared fraudulent and void as to cred- 
 itors. The New York Court of Appeals held that it was 
 well settled, in the case of a creditors' bill to reach a 
 chose in action, which was the character of the suit in 
 question, the judgment-debtor was a necessary party. 
 The earlier authorities show that the practice of joining 
 the debtor prevailed. 2 In Shaver v: Brainard 3 the action 
 was in the nature of a creditors' bill brought by a receiver 
 to set aside a conveyance of real estate as fraudulent, and 
 apply the proceeds upon the plaintiff's judgment. The 
 grantor and judgment-debtor was not made a party 
 defendant, and the judgment was reversed for that reason. 4 
 In another case, where a receiver filed a bill against a 
 trustee of the debtor to reach equitable interests of the 
 latter in a trust fund, tjie debtor was declared to be a 
 necessary party. 5 In Haines v. Hollister 11 the assignee' 
 
 '70 N. Y. 252; below, 40 N. Y. 3 29 Barb. (N. Y.) 25. 
 
 Supr. Ct. 266; Sprague v. Cochran, 4 See Allison v. Weller, :: Hun (N. 
 
 84 Hun (N. Y.) 240, 32 N. Y. Supp. V.) 603, affi'd W X. Y. 61 I ; North v. 
 
 570; Hubbell v. Merchants' Nat. Bk. Bradway, !> Minn. 183. 
 
 42 Hun (N. Y.) 200. B Vanderpoel v. Van Valkenburgh, 
 
 5 Ednieston v. Lyde, 1 Paige (N. Y.) 6 N. V. L90. See Voorhis v. Gamble, 
 
 637 ; Boyd v. Hoyt, 5 Paige (N. Y.) 65 ; 6 Mo. App. 1: Lawrence v. Bank of 
 
 Fellows v. Fellows, 4 Cow. (N. Y.) the Republic, 35 X. Y. 320 : Beai'dslej 
 
 682; Bobb v. Bobb, 8 Mo. App. 259; Scythe Co. v. Foster, 36 X Y 561 ; 
 
 Greenjv. Hicks, 1 Barb. Ch. (N.Y.)309. .Miller v. Hall, 70 X. Y. 252 
 
 See Wallace v. Eaton, 5 How. Pr. (N. ' M X Y. 1. 
 Y.)99.
 
 DEBTOR AS DEI ENDANT. § [28 
 
 of an insolvent firm, the personal representatives of a 
 deceased partner, and the surviving partners, were held 
 to be properly joined in a creditors' action to compel an 
 accounting by the assignee, and to recover of the repre- 
 sentatives the balance of the plaintiffs' claims. 1 In Law- 
 rence v. Bank of the Republic 2 the court observed: " In 
 a creditors' suit against a judgment-debtor to set aside a 
 prior assignment made by him in trust for the benefit of 
 creditors, on the ground of fraud, he is a necessary party. 
 Indeed he must be deemed the principal party, otherwise 
 different persons, claiming portions of the assignee's 
 property, could not be joined as defendants. The com- 
 mon point of litigation is the alleged fraudulent transfer 
 of the property." 3 The controversy is over the debtor's 
 single scheme to defraud creditors consummated, it may 
 be, by several acts. 4 The case of Gaylords v. Kelshaw r> 
 is sometimes cited as an authority for the proposition 
 that in any form of action to annul a conveyance as 
 fraudulent the debtor must be summoned. The court 
 said that the debtor was properly made defendant to the 
 suit, as it was a debt which he owed which the creditor 
 sought to collect, and it was his insolvency that was to be 
 established, and his fraudulent conduct that required 
 investigation. It was expressly held, however, that it was 
 not necessary to decide whether the suit could proceed 
 without him, because, as matter of fact, he had been found 
 in the district and had answered the bill. Miller, J., said : 
 " It is simply the case of a person made a defendant by 
 
 'Compare Wells v. Knox, 17 Civ. Mahler v. Schmidt, 43 Hun (N. Y.) 
 
 Pro. (N. Y., 59, J N. Y. Supp. 45; 514; Graves v. Corbin, 132 IT. S. 586, 
 
 Murray v. Fox, 39 Hun (N. Y.) ill. 10 S. C. Rep. 196. 
 
 • Y 324. I Wall. 81; Judson v. Courier 
 
 8e Beardsley Scythe Co. v. Foster, Co., 25 Fed. Rep. 708 ; Swan Land & 
 
 36 V Y 566; Bradner v. Holland, 83 Cattle Co. v. Frank, 148 D". S. 610, 13 
 
 Hun \ 5 s. C. Rep. 691. 
 
 • Wood v. Sidney Sash, etc. I !o., 92 ' See Taylor v. Webb, 54 Miss. 42. 
 1 1 'in ■ N Y) 26, 37 X. V. Supp. 885;
 
 §129 DEBTOR NO! NECESSARY DEFENDANT. 
 
 the bill, who is also a proper [the court did not sa\ nei 
 sary] defendant, according to the principles which govern 
 courts of chancery as to parties, and who has been served 
 with process within the district and answered the bill ; but 
 whose citizenship is not made to appear in such a manner 
 that the court can take jurisdiction of the case as to him." 
 A corporation is a necessary party to a creditors' bill 
 against officers or stockholders who have divided the 
 assets among themselves. 1 
 
 In an action for unpaid subscriptions a judgment-ci editor 
 may join all the stockholders, or if they are too numerous 
 he should so allege in the bill ;~ and the corporation may 
 be joined. 3 In a suit to set aside as fraudulent a trust 
 deed giving preferences to creditors, the beneficiaries 
 should be parties, 4 and as we have seen, the debtor must 
 be joined in a creditor's suit brought to impeach and set 
 aside a general assignment. 5 
 
 § 129. When debtor not necessary defendant. — Fox v. 
 Moyer 6 is an illustration of a case in which the debtor is 
 not a necessary party defendant ' The plaintiff was a judg- 
 
 1 Deerfield v. Nims, 110 Mass. 115. 915; and compare First National 
 
 See Swan Land & Cattle Co. v. Frank, Bank v. Shuler, 153 N. V. 170; Buf- 
 
 148 U. S. 610, 13 S. C. Rep. 691. fington v. Harvey, 95 I'. S. 103. 
 
 2 Adler v. Milwaukee Patent Brick ' See Hickox v. Elliott, 22 Fed. Rep. 
 
 Mfg. Co., 18 Wis. 57 ; Vick v. Lane, 56 20, citing the text. The courl say: 
 
 Miss. 681; Wetherbee v. Baker, 35 " So far as Ben Holladay is concerned, 
 
 N. J. Eq. 501 ; Holmes v. Sherwood, his indebtedness to the assignor of the 
 
 3 McCra. 405; Bronson v. Wilming- plaintiff is established by the decree, 
 
 ton, N. C, Life Ins. Co., 85 N. C. 41 I. and is no longer open to controversy . 
 
 3 Wetherbee v. Baker, 35 N. J. Eq. and the transfers and conveyances in 
 501 ; Perkins v. Sanders, 56 Miss. 733 : question are good against him, and 
 Patterson v. Lynde, 112111. 196 ; Tay- can only be avoided at the suil of a 
 lor on Corps., ^ 704. creditor. He lias, then, do interesl in 
 
 4 Simon v. Ellison, 90 Va. 157, IT this controversy. Bisindebtedni 
 
 S. E. Rep. 836. fixed, and the property sought to be 
 
 5 First National Bank v. Shuler, affected has passed beyond his eon- 
 ISSN. Y. 168. trol, and he cannot be prejudiced, in 
 
 6 54 N. Y. 130. See Leonard v. any legal sense, by a decree which 
 Green, 34 Minn. 140, 24 N. W. Rep. may subject it to the paymenl of his
 
 254 
 
 DEBTOR NOT NECESSARY DEFENDANT. 
 
 § * 2 9 
 
 ment-creditor with execution returned unsatisfied. He 
 claimed that his judgment was a lien upon certain real 
 estate which one of the judgment-debtors had fraudulently 
 conveyed to the defendant, and he commenced this action 
 to have the cloud resting on the lien of his judgment 
 removed, and to have his judgment satisfied out of this land, 
 notwithstanding the conveyance. Earl, C, in delivering 
 the opinion of the New York Commission of Appeals, 
 said : "The conveyance was good, as between the parties 
 thereto, and hence no one had any interest to defend this 
 suit but the defendant, and he was therefore the only proper 
 party defendant." J Fox v. Moyer was relied upon by the 
 plaintiff's counsel in Miller v. Hall 2 as controlling, but the 
 Court of Appeals said that the former case was not a cred- 
 itors' bill, and was plainly to be distinguished from the 
 other cases which we have noticed. In Burlington v. Har- 
 vey 3 it was urged that the assignee's bill was defective 
 
 debts. 
 
 Linson 
 
 Bump, 
 
 Fraud. 
 
 Mover, 
 
 /// re Kstr-s, (» Sawy. 4o9 : Col- 
 
 v. Jackson, 8 Sawy. 365; 
 Fraud. Conv. 548; Wail, 
 
 Conv. i=s; 129, 171 ; Fox v. 
 
 ■11 N. Y. 128. Tt follows that 
 while Hen Holladay is a proper party 
 to tin-, suit, he is not a necessary one 
 and might have been omitted from 
 Ihebill. And Ins agents and trustees, 
 who conveyed this property to Joseph 
 Holladay under his direction, have 
 less interest in the suit, or the subject- 
 matter of it, if possible, than he has. 
 As against them, also, the convey- 
 ances an- good. They passed the 
 legal title to Joseph Holladay. These 
 parties have no longer any Interest in 
 the property or power over it. No 
 relief i- sought against them, and they 
 cannot !»• prejudiced by anj decree 
 thai maj be given in the 3uit. The 
 of (ia\ lords \ . Kelshaw, i Wall. 
 s l . cited by counsel for Joseph Holla- 
 day, decides nothing tot he '-out rary 
 of tin-. K. Idiau . being the debtor 
 
 ami grantor in the alleged fraudulent 
 conveyance, was a proper, although 
 
 not a necessary, party in that case. 
 I'nt, being made a party defendant, 
 without any averment as to his citi- 
 zenship, it did not appear that the 
 court had jurisdiction. Accordingly, 
 the case was remanded, with leave to 
 the plaintiffs to amend their bill gen- 
 erally, which they might do by alleg- 
 ing the citizenship of Kelshaw, if it 
 was sufficient to give the court juris, 
 diction, or by omitting his name from 
 the hill. The general ride is that no 
 person need he made a party t<> a suit 
 who has no interest in it. and against 
 whom not hing i- demanded." 
 
 'See Campbell v. Jones, 25 Minn 
 155 : Bomar v. Means, ■'.: S. < '. .VJO, 16 
 S. K. Rep. 537 ; Blanc v. l'a\ master 
 Mining Co., 95 Cal, 524, 30 Pac. Rep. 
 765. 
 
 It) N. V 
 \ . 252. 
 95 r. s. 
 
 Supr. Ct. 268, affi'd in V 
 
 io:j.
 
 §129 DEBTOR MM NECESSARY DEFENDANT. -55 
 
 because the bankrupt was not joined. Bradley, [., after 
 remarking that the bankrupt had no interest to be affected 
 except what was represented by the assignee, said : "As to 
 the bankrupt himself the conveyance was good ; if sel aside 
 it could only benefit his creditors. He could not gain or 
 lose, whichever way it might be decided." ' In Potter v. 
 Phillips? the court said that though the debtor was a proper 
 party, it did not see why he was to be regarded as a neces- 
 sary party ; whether the conveyances were fraudulent or in 
 good faith the property irrevocably passed beyond his con- 
 trol. He could be prejudiced in no way, in a legal sense, 
 by a determination which subjected the property to the 
 payment of his debts. So it was decided in Minnesota 
 that where a creditor sold land which the debtor had fraud- 
 ulently alienated, the fraudulent grantee might bring an 
 action against the purchaser to determine his title without 
 brineine in the fraudulent crrantor. 3 It is remarked in 
 some of the cases that the fraudulent grantor should be 
 joined because it is his conduct that is to be investigated. 
 The Supreme Court of Mississippi observe, however, that 
 the object of the proceeding is to reach property, not char- 
 acter. In truth the proceeding is in rem, and while the 
 complainant may, if he choses so to do, join as defendants 
 all who are connected with the property, or the transac- 
 tions to be investigated, he is only compelled to join those 
 in whom the legal title vests, or those who have a bene- 
 ficial interest to be affected. 4 Cases are cited in conso- 
 nance with this reasoning.' 
 
 'Benton v. Allen, 2 Fed. Rep 448; v. Paymaster Min. Co . 95 Cal. 584, 30 
 
 Weise v. Wardle, L. R. 19 Eq. 171 ; Pac. Rep. 765. 
 Hickox v. Elliott, 22 Fed. Rep. 20. 'Smith v. Grim, 26 Pa St. 95; 
 
 2 44 Iowa, 357; Capital City Bank Dockray v. Mason, 18 Me. 178; Laugh- 
 s'. Wakefield, 83 Iowa 48, 48 N. W. ton v. Barden, 68 Me. 209; Merry v. 
 Rep. 1059. Fremon, H Mo. 518; Cornell v. Rad- 
 
 ^ Campbell v. Jones, 25 Minn. 155. way. 22 Wis. 260. See Shaw v. Mill- 
 
 <Tavlorv. Webb 54 Miss. 36 : Blanc saps, 50 Miss. 380 ; Jackman v. Robin- 
 son, G4 Mo. 289.
 
 256 DEBTOR NOT NECESSARY DEFENDANT. § I J<j 
 
 What inference then is to be deduced from this mass 
 of authority, and which class of cases embodies the best 
 log-ic ? Should the debtor be joined as a defendant in 
 an action to annul a fraudulent transfer? The best 
 reasoning of the authorities seems to establish the rule 
 that the debtor's presence as a defendant is superfluous 
 in suits brought against fraudulent alienees to annul 
 specific covinous conveyances. The transfer is conclu- 
 sive 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 
 creditor's needs may require ; under established principles 
 of law the debtor can gain nothing by it ; he is practically 
 a stranger to the property, nor can he 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 creditors' bill, embodying the 
 elements of a bill of discovery, the debtor's presence 
 would seem to be essential to the jurisdiction of the 
 court. 1 The practitioner must be careful to distinguish 
 between an action instituted to reach specific property 
 fraudulently alienated, and a suit brought to discover 
 equitable interests which are not subject to execution, 
 and the title to which is in the debtor. In the latter case 
 the debtor must of necessity be a defendant. Especially 
 should the complainant make the debtor a defendant 
 where it appears that parties holding separate property 
 under distinct conveyances are joined. In such proceed- 
 ings the debtor constitutes the king-pin of the action. In 
 any case it is the safer and more prudent practice to 
 summon the debtor as a defendant, for a vexed question 
 is then put at rest, and the misfortune similar to that 
 
 Compare Firsl National Bank v. Shuler, 153 N. V. 174.
 
 § 130 DEFENDANTS NOT EQ1 AIM G1 II IN. j;; 
 
 which overwhelmed the creditors' representative in Mil- 
 ler v. Hall ! will be averted. 2 
 
 § 130. Defendants need not be equally guilty A.S a 
 general rule where the subject-matter of a suit is real 
 or personal property, and the purpose of the plaintiff is to 
 set aside fraudulent judicial proceedings in reference to it, 
 the complainant should make all persons parties who 
 were actors in the proceedings, especially if they claim a 
 present interest in the property in dispute. A complaint 
 so framed is not demurrable on the theory that there is an 
 improper joinder of several causes of action against 
 different persons ; on the contrary it is regarded as a 
 single cause of action affecting all the defendants. 
 Westcott, J., in delivering the opinion of the Supreme 
 Court of Florida, 3 very appropriately says : " It is 
 apparent from the case stated that all of the defendants 
 were not jointly and equally concerned in each distinct 
 fraudulent act charged. There was a series of acts in this 
 well-conceived network of fraud, all terminating in tin- 
 deception and injury of the plaintiff. The defendants 
 performed different parts in the drama. These acts 
 affected the property of the debtor — some the personal 
 property, others the real estate. The object of the plain- 
 tiff in this complaint is to get the assistance of this court 
 in unravelling this network of fraud in respect to each 
 species of property, and to have a due application of the 
 same to the payment of the claims of creditors. 1 he 
 right of the plaintiff is against the whole property, and his 
 right against all portions of it is of the same nature. The 
 
 1 70 N. Y. 252. against whom no fraud or conceal- 
 
 2 When the sole design of a bill is ment is imputed, no discovery Bought, 
 to have individual property of one and no ruling asked, is neither a nec- 
 partner claimed to have been fraudu- essary nor a proper party. Randolph 
 lently alienated, applied in payment v. Daly. 16 N. J. Eq. 315. 
 
 of a firm judgment, another partner 3 Howse v. Moody, 1 I Fli 
 
 1/
 
 258 FRAUDULEN1 ASSIGNEE. §131 
 
 decree in chancery and the sale thereunder are but acts of 
 fraud, which are sought to be set aside in order to enforce 
 this general riofht. In fact, the ri^ht to set aside these 
 proceedings can only coexist with an equity affecting the 
 property which was the subject of them. There can be 
 no such thing as an equity or right to set aside these pro- 
 ceedings distinct and independent of rights and equities 
 attached to the subject-matter that they affect. The 
 result is that these are not several causes of action, but 
 are acts which, connected with the debt due plaintiff, con- 
 stitute a ground for one action alone." 
 
 § 131. Fraudulent assignee or grantee must be joined.— A 
 judgment as a general rule only binds parties and privies. 
 As the property which is the object of pursuit is usually 
 in the hands of a transferee, it follows that such person 
 must be joined as defendant, so that he may be affected 
 and concluded by the judgment. The proceeding would 
 be futile if it omitted him. 1 It was accordingly held, in 
 a case where a creditors' bill was filed to reach moneys 
 due upon a mortgage which was alleged to have been 
 fraudulently assigned by the debtor, that the assignee of 
 the mortgage, although he resided out of the State, must 
 be joined as a defendant. 2 It is the plaintiff's mis- 
 fortune if he is unable to secure the presence of the 
 necessary parties. 3 Parties to intermediate conveyances 
 
 1 Sage v. Mosher, 28 Barb. (N. Y.) (Va.) 15 ; Jackman v. Robinson, 64 
 
 287 In Stillwell \. Stillwell, IT N. Mo. 289 ; Bamniond v. Budson River 
 
 J. Eq. 275, 20 All. Rep. 960, it was 1. & M Co, 20 Bail .. (N. Y.) 379; 
 
 held that where a decree was made Copis v. Middleton, 2 Madd. 410; 
 
 setting aside the conveyance as Thornberry v. Baxter, 24 Ark. 7C ; 
 
 fraudulenl to which the fraudulent Winslow v. Dousman, 18 Wis. 156; 
 
 grantee was not made a party, and a Hamlin v. Wright, 23 Wis. -491; 
 
 sale was had under such decree an Main- v. Norwich Union Fire Ins. 
 
 action could be broughl bi the Soc, 127 N. Y. 461. 28 N. E Rep. 391. 
 
 grantee to eel aside such sale. 3 Mahr v. Norwich Union Fire Ins. 
 
 Gi Schenck, 1 X Y. 160. Soc, 127 N. Y. 452, 28 N. E. Rep. 391. 
 richenor \ . Allen, 13 < rral t.
 
 §132 JOINING DEFENDANTS. 
 
 need not be joined, 1 nor grantees pendente lite, for they 
 stand in no better position than those under whom they 
 claim. ~ 
 
 In a suit to set aside a fraudulent conveyance there is 
 no necessary inconsistency in averring the grantee to be a 
 fictitious person, and stating that the deed in his name 
 was made to hinder and defraud creditors/' 
 
 § 132. Joining Defendants.— The rules with reference to 
 the joinder of defendants will be noticed somewhat at 
 length in discussing the subject of complaints bad for 
 multifariousness. J The cases there reviewed seem to 
 establish the principle that different fraudulent purchasers 
 of distinct pieces of property may be joined as defend- 
 ants. In such cases the debtor is a necessary party, as he 
 is " the very link which unites them all together, the com. 
 mon centre to which they are all connected, and it is 
 because he is a party defendant that they can all be 
 joined in one action as co-defendents."'' The defendants 
 in such cases are said to be united in a common design. 
 Each is charged with colluding with the debtor in order 
 to defraud his creditors. Where there is one entire 
 case stated, as against the debtor, it is no objection that 
 one or more of the defendants to whom parts of the prop- 
 erty had been fraudulently conveyed had nothing to do 
 with the other fraudulent transactions. The case 
 against the debtor is so entire that it cannot be prose- 
 
 1 Stout v. Stout, 77 Ind. 537: Van-Valkenburgh, 6 N. Y. 190 ; Wal- 
 Walter v. Riehl, 38 Md. 211 ; Jack- ier v. Shannon. 53 Miss. 500; Baulk- 
 man v. Robinson, 64 Mo. 289. nighl v. Sloan, IT Fla. 284 ; Donovan 
 
 2 Schaferman v. O'Brien, 2S Md. v. Dunning, 69 Mo. 136; Van Kleeck 
 060. v. Miller, 19 X. B. R. 184; Bank v. 
 
 3 Purkitt v. Polack, 17Cal. 327. Harris, 84 X. C. 206 - L50. 
 
 4 See £§ 150, 151, 152. Chase v. Searles, 45 X. 11 51 1. Alii 
 
 5 Potueroy's Remedies and Rome- son v. Weller, 6 T. & C X. Y 291, 
 
 dial Rights, g 347 ; Lawrence v. Bank affi'd 66 X. V. 614 ; Boone Count} \. 
 
 of the Republic, 35 N. Y. 324 ; Trego Keck, 31 Ark. 487. 
 
 v. Skinner. 42 Md. 432; Haines v. s SeeWood v. Sidnej Sash, Blind, 
 
 Hollister, 64 N. Y. 1 ; Vanderpoel v. etc. Co., 92 Hun | X. Y. 24
 
 260 
 
 I I IN\ EYANCE PENDING SI I I. 
 
 § IS^a 
 
 cuted in several suits, and yet each of the defendants is 
 a necessary party to some part of the case stated. 1 If, 
 however, the party reached and made defendant has a 
 remedy over against other parties for contribution or 
 indemnity, it will be no defense to the primary suit 
 against him that such persons are not made parties. A 
 creditor might never get his money if he could be stayed 
 until all the parties who were obligated could be made to 
 contribute their proportionate shares of the liability. 2 
 
 £ 132a. Conveyance pending suit. — The law is established 
 that a party who intermeddles with property in litigation 
 does so at his peril, and is as conclusively bound by the 
 results of the litigation, whatever they may be, as if he 
 had been a party to it from the outset. 3 Were the rule 
 otherwise endless entanglements would result.' 
 
 'Way v. Bragaw, 16 N. J. Eq. 
 216. Compare A.tty.-Genl. v. Corpo- 
 ration of Poole, 4 Mylne & Cr. 31 ; 
 Brinkerhoff v. Brown, 4 Julius. Cli. 
 N. Y 1 671 ; Fellows v. Fellows, 4 
 t'ow. (N Y.) 682; Boyd v. Hoyt, 5 
 Paige 1 X. Y.) 78 ; Turner v. Robinson, 
 
 I Sim. & s. 313 ; Marx v. Tailer, 12 
 N. Y. Civ. Pro. 226. In Rosenthal v. 
 Coates, 11* CT. S. 147, the court say: 
 "The suit was, in effect, one hy the 
 assignee to disencumber this fund in 
 
 I I is possession of alleged liens, and the 
 fact that each defendanl had a sepa- 
 rate defense to this Claim did not create 
 a separable controversj as to him. 
 Fidelity Insurance Co. v. Huntington, 
 11? r. s. 280 ; Graves v\ Corbin, 132 
 r. s. 571, 586 ; Young v, Parker, 132 
 U. s. 267." 
 
 Marsh v. Burroughs, 1 Woods, 
 168. Where an action is brought to 
 forfeil a charter a lessee of the corpo- 
 ration may be Lei in to defend. Peo- 
 ple v. Aibanj & Vt R. R Co., 77 N. 
 Y. 282. The husband of the tra 
 
 proper defendanl in an 
 action to sel aside the transfer. Lore 
 
 v. Dierkes, 19 J. & S. (N. Y.) 144. \s 
 to when a cause of action to set aside 
 a mortgage on the ground of usury 
 and a cause of action to annul a 
 fraudulent conveyance cannot be 
 joined, see .Marx v. Tailer, 12 N. Y. 
 Civ. Pro. 226. In Artman v. Giles, 
 155 Pa. St. 11 1, 26 All. Rep. 668, the 
 bill was filed by a contract-creditor to 
 prevent judgment-creditors and the 
 sheriff from unking a sale. The 
 court says: "It joins separate re- 
 spondents, acting in different capaci- 
 ties, upon different rights, and not 
 chargeable with any joint liability 
 or interest in the relief sought. 
 Among these respondents are the 
 sheriff ;iikI the assignee for the bene- 
 fit of creditors, neither of whom is a 
 proper party to a bill of this nature." 
 Tilton v. Cofield, 93 U. S. 168; 
 Inloes' Lessee v. Harvey, 11 Md. 524; 
 Salisbury v. Morss, 7 Lans. (N, Y.) 
 359. affi'd 55 N. Y. 075 ; Bovey v. 
 Elliott, 118 N. Y. 133, 23 N. E. Rep. 
 575 : Lacassagne v. Chapuis, 144 TJ. 
 s. 125, 12 S. ('. Rep. 659. 
 
 'See ^ 157.
 
 §§ I32b, 133 ASSIGNEE AND RECEIVER AS~DEFENDANT. 
 
 132b. Bringing in representatives. Where, pending an 
 action to set aside an assignment and certain specific 
 transfers, the debtor dies, the action cannot proceed to 
 judgment without the presence of his personal represen- 
 tatives. 1 
 
 §133. Assignee and receiver as defendant. — In a case 
 which arose in New York, in which the assignee of an 
 insolvent copartnership had been joined as defendant, 
 the Court of Appeals said : " As this is an equity action, 
 the assignee of the firm, who had received its assets and 
 never rendered any account for the same, was a proper 
 party. He represents the firm, stands in its place so far 
 as property is concerned, and the avails of the same in his 
 hands are first liable to be appropriated to pay the 
 demands of the plaintiffs. No valid reason exists why a 
 person thus situated is not a proper party, in connection 
 with the survivors of the copartnership and the represent- 
 ative of the deceased partner." 3 If an action is brought 
 by a judgment creditor to reach property fraudulently 
 alienated, the fact that the debtor has made a general 
 assignment for the benefit of creditors is no defense to 
 the debtor or to his fraudulent alienee, because they can 
 have no interest whatever in the fund, and are not vested 
 with the right to guard any interests the assignee may 
 possibly have ; it is the assignee's exclusive privilege to 
 personally assert such rights. 3 Furthermore, under some 
 circumstances, the creditor may maintain an action in his 
 own name to set aside a fraudulent conveyance, even 
 though the assignee has the same right, if it can be shown 
 that the assignee is in collusion with the fraudulent par- 
 ties, or has refused on proper request to become a 
 
 1 First National Bank v. Shuler, » Fort Stanwix Bank v. Leggett. 51 
 
 153 N. Y. 171. N. Y. 554. 
 
 '-' Haines v. Hollister, 64 N. Y. 3.
 
 262 OBJECTION AS TO NON-JOINDER. §§ 133a, 1 34 
 
 plaintiff. 1 In any case the defense of the non-joinder of 
 the assignee, to be available, should be taken by demurrer 
 or answer, 2 disclosing the names of the omitted parties, 3 
 or it will be considered waived. 4 Chattels fraudulently 
 assigned may be attached by a creditor in the hands of a 
 voluntary assignee. 5 
 
 § 133a. Suing directors. — The receiver of a national 
 bank may, in his own name or in the name of the corpo- 
 ration, prosecute directors for the benefit of depositors 
 and creditors of the bank for negligence or failure to 
 perform duties. The corporate capacity of the bank 
 continues till its affairs are wound up and its assets dis- 
 tributed. 7 The directors are held liable for a want of 
 that care which a man of ordinary prudence would exer- 
 cise in the management of his own affairs. 8 But each 
 case rests largely upon its own facts, and the general 
 theme is too broad for extended discussion. 
 
 > 134. Objection as to non-joinder — How raised. — Dur- 
 and v. Hankerson 11 is perhaps an extreme illustration of 
 the effect of the failure to raise the issue as to non-joinder. 
 That action was prosecuted by a creditor to cancel a 
 deed. The conveyance was held to be good, but it 
 appeared that the debtor had taken back a mortgage 
 upon the property, which remained unsatisfied, and the 
 evidence tended to show that the debtor had assigned 
 
 1 Bate v. Graham, 11 X. Y. 237 ; 28 X V. 45; Frost v. Mott, 34 N. Y. 
 
 Barvey v. McDonnell, L13 X. Y. 531, 253. 
 
 21 X. K. Rep. B95. See§ 114. »Movius v. Lee, 30 Fed. \U> V . 300 ; 
 
 Fori Stanwix Bank v. Leggett, 51 Bank v. Kennedy, 17 Wall. 19. 
 
 X. V. 551. 'See Rosenblatt v. .Johnston, 104 
 
 P.;n State Iron (o. v. Goodail, 39 U. S. 402. 
 
 X. II. 234. h Hun v. Gary, 82 N. Y. 05. Com- 
 
 'Annin v. Annul, 24 N. J. Eq. 184; pare Briggs v. Spaulding, ill U. s. 
 
 Lyman v. Place, 2U X. .1. Eq. :'.<>. 132, 1 1 s. I '. Rep. 924. 
 
 Bess v. Bess, 111 N V 308, 22 X. "39 X. V. 287. 
 1; Rep 956. See Rinchej v. Stryker,
 
 § 135 MISJOINDER OF ( a i SES OF u HON. 
 
 the mortgage to a person not a party to the suit. It was 
 proved and found that this assignment was fraudulent, 
 and the purchaser from the debtor was directed to pay 
 the mortgage to a receiver. The purchaser strenuously 
 resisted this decree, upon the ground that the pretended 
 assignee of the mortgage not being a party, was not 
 bound by the judgment, but the learned Woodruff, [., 
 held that while it presented a case of possible hardship, 
 as payment might perhaps be enforced a second time, 
 yet the purchaser should have protected himself by raising 
 the objection in the manner prescribed by law. The 
 defendant who neither by answer nor demurrer takes such 
 an objection, waives it, and therefore cannot afterward In- 
 heard to object on that ground to any decree to which, 
 upon the facts alleged and proved, the plaintiff ma)' be 
 entitled. The cause thereafter proceeds, as to him, with 
 the like right in the plaintiff to a decree as if the sup- 
 posed proper or necessary party had been brought into 
 court. 
 
 We may here observe that the appointment of a 
 receiver does not absolutely dissolve a national bank, 
 and that in an action to establish the rejected claim of a 
 creditor, the bank and the receiver may both be made 
 parties defendant. 1 
 
 § 135. Misjoinder of causes of action. — A cause of action 
 against sureties upon the bond of an administrator, claim- 
 ing a breach of its condition, cannot be united in the 
 same complaint with a cause of action arising out of the 
 fraudulent disposition of property,- against the adminis. 
 trator of the deceased intestate and others. 
 
 'Green v. Walkill Nat. Bank, 7 son, 8 Wall. 498; <'ii\ of Lexington 
 
 Hun (N. Y.) 04; Brinckerhoff v. v. Butler, 14 Wall. 283. 
 Bostwiek, 88 N. Y. 61; Turner v. Howse v. Moody, I 1 Fla. 59. 
 
 First Nat. Bank, 26 Iowa, 562. Com- Compare generally, N. Y. & N. B, R 
 
 pare Pahquioque Bank v. Bethel R. Co. v. Schuyler, [1 N. V. 607; 
 
 Bank, 36 Conn. 325; Kennedy v. (Jil>- Town of Venice v. Woodruff , 68 N. 
 
 Y. 470.
 
 -"4 
 
 HEIRS AND LEGATEES. 
 
 SI36 
 
 sj 136. Executors, administrators, heirs, and legatees. — 
 We have already considered the status of personal repre- 
 sentatives, 1 heirs, and legatees, 2 as complainants. Let 
 us briefly advert to the question of their joinder as 
 defendants. In Allen v. Vestel, 8 it was said that a cred- 
 itor, in an action to set aside a fraudulent conveyance to 
 heirs of a deceased debtor, should allege that the per- 
 sonal property had been first exhausted, and should make 
 the administrator a party ; or, if there was none, should 
 secure one to be appointed. 1 This is but another phase 
 of the general question as to the necessity of joining the 
 debtor as a defendant. Authorities can be cited to the 
 effect that the administrator is not a necessary party to 
 the creditor's proceedings, 5 and to the opposite effect, 6 
 and holding that heirs need not be joined, 7 and, in New 
 York, as is elsewhere shown, 8 a distinction is made as to 
 
 1 See §§ 112, 113. 
 
 *See ? 121. 
 
 '60 1ml. 245. 
 
 ; Boggs v. McCoy, 15 W. Va. 344. 
 Contra, Jack man v. Robinson, 64 Mo. 
 289. Compare Smith v. Grim, 26 Pa. 
 St. 95. 
 
 Dorkray v. Mason, 4S Me. ITS; 
 Merry v. Fre 1, 4-1 Mo. 518; Tay- 
 lor v. Webb, 54 Miss. 36; Corn. 'II v. 
 Radway, 22 Wis. 260; Zoll v. Soper, 
 75 Mo. 462 : Jaekman v. Robinson, 64 
 Mo. 289. See Coffee v. Norwood, 81 
 Ala. 516; Munn v. Marsh, 38 N.J. 
 Eq. 410. 
 
 • Alexander v. Quigley, 2 Duv. (Ky.) 
 400; Postlewail v. Hours, 3 Iowa, 
 366 : 1 oates v. Day, 9 Mo. 300 ; Boggs 
 v. McCoy, 15 W. Va. 344 ; Pharis v. 
 Leachman, 20 Ala. 662. See Bach- 
 man v. SepuB eda, 39 ( !al, 688. 
 
 Smith \. Grim, 26 Pa. St. 96 ; 
 Wall v. Fairley, 73 X. C. 464 ; Shaw 
 \ Millsaps, 50 .Mis>. 884. Compare 
 Simmon.-, v. Ingram, 60 Miss. 886. 
 
 The conveyance made by their ances- 
 tor, it is said, though fraudulent, 
 concludes them, and effectually cuts 
 off all their interest in the property. 
 Harlin v. Stevenson, 30 Iowa, 371. It 
 may here be observed that the power 
 of a court of equity to charge real 
 estate in the hands of heirs with the 
 p.i\ mcnt of the ancestor's debts is un- 
 doubted. Chewett v. Moran, IT Fed. 
 Rep. 820: Payson v. Hadduck, 8 Hiss. 
 293 ; Riddle v. Mandeville, 5 Cranch, 
 323; Stratford v. Ritson, 10 Brav. -2:,: 
 Ponsford v. Hartley, 2 Johns. &. II. 
 730; Adams Eq. 257; Story's Eq. 
 Plead. 99-102. By statute in New 
 York heirs of an intestate who have 
 inherited I md must, in certain cases, 
 be sued jointly, and not separately, 
 for a debt due from the deceased. 
 Krllog v. Olmstead, li How. Pr. (N. 
 Y.i487. See Selover v. Cor, 03 N. 
 Y. 438. 
 
 8 See ?? 128, 129.
 
 § 136 
 
 HEIRS AND I EGA fEES. 
 
 
 the form of the action, the debtor being a necessary 
 party in a creditor's action, 1 but not in a suit in equity to 
 remove a fraudulent cloud. 2 Where this distinction is 
 recognized, it might be extended to cover the cases of 
 personal representatives and heirs. The United States 
 Supreme Court leans to the view that in a suit to chai 
 real estate with the payment of a debt, the heirs and 
 devisees should be made parties to the bill. 3 
 
 In a creditors' bill under which an executor had been 
 removed from office, the Supreme Court of South 
 Carolina held that the legatees were necessary parties, 
 and that the receiver appointed in the place of the 
 deposed executor did not represent them. 4 Again the 
 Supreme Court of Ohio has decided, that where the 
 grantee dies after the rendering of a decree in favor of a 
 judgment-creditor setting aside a conveyance and order- 
 ing a sale of the property, the failure to revive the decree 
 
 1 Miller v. Hall, 70 N. Y. 252. 
 
 2 Fox v. Moyer, 54 N. Y. 130. 
 
 3 Walker v. Powers, 104 U. S. 
 251. 
 
 Administrator not necessary party 
 — Cornell v. Radway. — In an action 
 which arose in Wisconsin, it appeared 
 that a debtor in his lifetime received 
 an absolute deed of land and failed 
 to record it, and subsequently de- 
 stroyed the deed with a fraudulent 
 design, and procured the grantor to 
 execute another deed to a third per- 
 son without consideration. A judg- 
 ment-creditor of the deceased debtor, 
 whose judgment was recovered while 
 the deceased held the first deed, 
 brought a suit against the third party, 
 and the widow and heirs of the de- 
 ceased debtor, to establish the debtor's 
 title and enforce the lien of the judg- 
 ment. Objection was raised that the 
 administrator was not a party. The 
 
 court said : "This is well answered 
 when it is said that this is a proceed- 
 ing for the benefit of (lie estate, and 
 that the administrator could make n«> 
 opposition if he were present. Wedo 
 not see, therefore, bow the estate can 
 be prejudiced or the plaintiff's righl 
 to relief affected by the absence of 
 the administrator. The conveyance 
 to the defendant Jones [the third 
 party] being sel aside, and the title 
 adjudged to have been in thedeceased 
 judgment-debtor from the time of his 
 purchase, the plaintiff will then pro- 
 ceed as if the debtor had died seized 
 of the land with lull evidence of title- 
 in himself. The administrator is nol 
 a aecessarj partj ." < lornell \ . Rad- 
 way, 22 Wis. 265. Compare Hentz v. 
 Phillips, 23Abb. N. C. V Y 15.6N. 
 Y. Supp. L6. 
 
 4 Fraser \ . < lharleston, 18 S I 
 533.
 
 266 TRUSTEE AND I EST1 I QUE TRUST. § [37 
 
 against the heirs of the grantee did not affect the title of 
 a purchaser under the decree. 1 
 
 What then is the result of the cases upon this point ? 
 Necessarily much the same conclusion must be reached 
 as is gathered from the authorities upon the question of 
 the joinder of the debtor in an action to reach assets in the 
 hands of a third party. We have already seen that the 
 personal representatives may, in certain cases, annul covin- 
 ous alienations made by the deceased, but only so far as 
 may be necessary to satisfy creditors. 2 In States where 
 the right of the creditor to seek direct relief is upheld, it 
 is difficult to see why the personal representatives or 
 heirs should be joined ; the conveyance is conclusive 
 upon such parties, and their presence in the suit will 
 neither aid the creditors nor benefit them. 
 
 ;: 137. Trustee and cestui que trust. — Mr. Pomeroy 
 says : 3 " There is a broad distinction between the case of 
 an action brought in opposition to the trust, to set aside 
 the deed or other instrument by which it was created, and 
 to procure it to be declared a nullity, and that of an action 
 brought in furtherance of the trust, to enforce its pro- 
 visions, to establish it as valid, or to procure it to be 
 wound up and settled. In the first case, the suit may be 
 maintained without the presence of the beneficiaries, since 
 the trustees represent them all and defend for them." 
 The Supreme Court of Georgia, 4 adopting this general 
 rule, held that where a creditor claims not under but in 
 opposition to a deed of trust made by his debtor, and 
 seeks to set the same aside on the ground that it is, as to 
 him, fraudulent and void, he is at liberty to proceed against 
 the fraudulent trustee who is the holder of the legal 
 estate in the property, without joining the cestui que 
 
 Beaumont v. Herrick, 21 Ohio St. 'Remedies and Remedial Rights, 
 
 1 10. ? 3.-,7. 
 
 - • .1 28, 1 '-".1 4 Tucker v. Zimmerman, 61 Ga. 599.
 
 § 1 3S PARTY HAVING LIEN. 
 
 trust! The oreneral rule is that, in suits affectim-- the 
 trust, the trustee and res//// que trust must be joined. 8 
 There is an exception to the rule in case of voluntary 
 general trusts for the benefit of creditors, growing out of 
 the difficulty of joining all the creditors, and in such case 
 it is sufficient to bring in the trustee, and the creditors 
 will be bound on the principle of representation.' 5 
 A decree setting aside the deed, or charging the property 
 with the creditor's demand, will, if fairly and honestly 
 obtained, conclude the cestui que (rust as being repre- 
 sented by the trustee, but is subject to be impeached for 
 fraud or collusion. 4 
 
 § 138. Party having lien. — It certainly is reasonable, and 
 seems to be recognized as an established rule, that, where 
 a party has a lien, by way of mortgage for example, upon 
 the property which is the subject of contention, and no 
 ruling is asked against such lien, and it is not assailed, but 
 the title under it is conceded to be valid, there is no 
 ground upon which the holder of the lien can be regarded 
 as a necessary party to the suit. 5 The creditors, having 
 elected to avoid the fraudulent conveyance, take the prop- 
 erty as though the transfer had never been made, and 
 subject to all lawful liens upon it. ,; But where the lien- 
 holder is made a party to the suit, and the validity of 
 his claim is investigated and disposed of by the judgment 
 adversely to the validity of the lien, a sale by the receiver 
 
 1 Rogers v. Rogers, 3 Paige (N. Y.) B Trego v. Skinner, 42 Bid. 151. See 
 379. See Phenix Nat. Bk. v. A. B. Walter v. Riehl, 38 Md. 211 : Venable 
 Cleveland Co., 11 N. Y. Supp. 877. v. Bank of the United States, 2 Pet. 
 
 2 Landon v. Townshend, 112 N. Y. 107; Erfort v. Consalus, i: Mo. 218. 
 99, 19 N. E. Rep. 424. Compare Reynolds v. Park, 5 Lans. 
 
 3 Landon v. Townshend, 112 N. Y. (N. Y.) 14!); reversed 53 N. Y. 36. 
 
 99. 6 Hutchinson v. Murchie, 7 1 Me. 
 
 4 Russell v. Lasher, 4 Barb. (X. Y.) 190; Avery v. Backley, 20 Wall. HI. 
 232; Wheeler v. Wheedon, 9 How. Compare Murphj v. Briggs, 88 \. Y. 
 Pr. (N. Y.)300. 446.
 
 268 STOCKHOLDERS. § 1 39 
 
 will transfer to the grantee a title superior to such lien or 
 claim. 1 
 
 § 139. Stockholders. — The assets of a corporation are, as 
 we have seen,' regarded as, in a sense, a trust fund for the 
 payment of its debts/ 5 and its creditors have a lien upon 
 it, and the right to priority of payment over its stock- 
 holders. 4 Hence where property of a corporation had 
 been divided among" its stockholders before its debts had 
 been paid, the court decided that a judgment-creditor, 
 with execution returned unsatisfied, could maintain an 
 action in the nature of a creditors' bill against any one 
 stockholder to reach whatever had been received by him, 
 whether wrongfully or otherwise. It is unnecessary to 
 make all the stockholders defendants. 5 
 
 The question of the statutory liability of stockholders 
 to the creditors of a corporation where the capital has 
 not been all paid in and a certificate to that effect filed 
 as required by statute, has given rise to much litigation 
 in New York and other States where such provisions 
 exist. This liability is sometimes said to rest in contract, 6 
 
 1 Sliand v. Hanley, 71 N. Y. 324. 476; Peters v. Bain, 133 U. S. 691, 
 
 See Chautauque Co. Bank v. Risley, 10 S. C. Rep. 354. 
 
 19 N. Y. 372. Where a debtor has * Bartlett v. Drew, 57 N. Y. 587: 
 
 conveyed property in fraud of cred- Upton v. Tribilcock, 91 U. S. 45-47 ; 
 
 [tors, and the alienee at the debtor's Sawyer v. Hoag, 17 Wall. 610: Cole 
 
 request lias given a mortgage upon it v. Millerton Iron Co., 133 N. Y. 164, 
 
 to a creditor whose debt existed at 30 N. E. Rep. 847. 
 
 the date of the conveyance, the latter 5 Bartlett v. Drew, 57 N. Y. 587; 
 
 is regarded as a purchaser " for a val- Wheeler v. Millar, 90 N. Y. 361. A 
 
 liable consideration," 2 R. S.N. Y. stockholder of an insolvent bank may 
 
 137, §5; and although the conveyance be compelled to pay an unpaid sub- 
 
 i- ~f\ aside by other creditors, the lien scription to the assignee, and he has 
 
 of the mortgage cannot be affected, no right to set off the amount of his 
 
 Murphy v. Briggs, V M N. Y. 146, dis- deposit in the bank. Macungie Sav- 
 
 tinguishing and limiting Wood v. ings Bank v. Bastian, 1 Am. Ensolv. 
 
 Robinson, 82 X. Y. 564. Hep. 484. 
 
 || 117-119; Wait on Insolvenl 6 Flash v. Conn, 109 U. 8. 371, 3 S. 
 
 < iorps. Chap. VII. C. Rep. 263 ; Wiles v. Suydam, 64 N. 
 
 Swan Land & Cattle Co. v. Frank, Y. 173 ; Cochran v. Wiechers, 119 N. 
 
 148 U.S. 609, 18 S. ( !. Rep. 691 ; Fogg Y. 403,23 N. E. Rep. 803. 
 \. Blair, 189 U. 8. 126, US. 1'. Rep.
 
 § 139 
 
 STi h kik ILDERS. 
 
 
 but the liability of directors for failure to file an annual 
 report, as directed by statute, is considered to be penal. 1 
 The statute in the former case in effect withdraws the 
 protection of the corporation from the stockholders, and 
 holds them liable as copartners.- If the liability was 
 penal the statute could, of course, have no operation in 
 another State, 3 for penal statutes are strictly local in their 
 operations and results. 4 Hence it was held that, as the 
 obligation imposed upon a stockholder under the New 
 York statute rested in contract, it could be enforced in 
 Florida, 5 the rule being that a transitory action may be 
 brought in any court having jurisdiction of the parties and 
 the subject-matter.' 5 
 
 1 Gadsden v. Woodward, 103 N. Y. 
 244, 8 N. E. Rep. 653; Veeder v. 
 Baker, 83 N. Y. 160 ; National Bank 
 v. Dillingham, 147 N. Y. 609, 42 N. E. 
 Rep. 338. 
 
 2 Corning v. MeCullough, 1 N. Y. 
 17. See Rogers v. Decker, 131 X. Y. 
 492 ; Rogers v. Decker, 62 Hun (N. 
 Y.) 17, 16 N. Y. Supp. 407 ; National 
 Bank v. Dillingham, 147 N. Y. 608, 
 42 N. E. Rep. 338. 
 
 3 Flash v. Conn, 109 U. 8 . 376, 3 S. 
 C. Rep. 263; Marshall v. Sherman, 
 148 N. Y. 25, 42 N. E. Rep. 419 : Hunt- 
 ington v. Attrill. 146 U. S. 657, 13 S. 
 C. Rep. 224. 
 
 4 See The Antelope, 10 Wheat, 66 ; 
 Huntington v. Attrill, 146 U. S. 666, 
 13 S. C. Rep. 224 ; Scoville v. Can- 
 field, 14 Johns. (N. Y.) 338 ; Western 
 Transp. Co. v. Kilderhouse, 87 N. Y. 
 
 430; Lenimon v. People, 20 N. Y. 
 562; Henry v. Sargeant, 13 X. II. 
 321: Story's Conflict of Laws (8th 
 ed.), § 621. 
 
 5 Flash v. Conn, 109 U. S. 379, 3 S. 
 C. Rep. 263. 
 
 "Denniok v. Railroad Co., 103 (J. S. 
 11; Texas A: Pacific Ry. Co. v. Cox, 
 L45 U. S. 593, 12 S. ('. Rep. 905 ; Mar 
 shall v. Sherman, 84 Hun (N. Y.) 190. 
 32 N. Y. Supp. 193. We cannot here 
 venture, except incidentally, into the 
 wide field regulating the remedies <>f 
 creditors against insolvent corpora- 
 tionsor their officers. See Wait en 
 Insolv. Corps. Chap. II. But it may 
 be noted that a creditors' bill may be 
 filed against a county. Lyell v. Super- 
 visors of St. Clair, 3 McL. 580 ; Wait 
 on Insolv. Corps. §111.
 
 CHAPTER IX. 
 
 COMPLAINT. 
 
 | 140. Recitals of the complaint. 
 141. Pleading fraud. 
 
 143. Evidence not to be pleaded. 
 14:>. Alleging insolvency. 
 
 144. Allegations concerning consid- 
 
 eration. 
 
 145. Fraudulent intent. 
 140. Pleading in equity. 
 
 147. Seeking discovery. 
 
 148. Excusing laches — Concealment 
 
 of fraud. 
 
 149. Explaining delay — Discovery of 
 
 fraud. 
 
 § 150. Complaints bad for multifari- 
 ousness. 
 
 151. ) Pleadings held nut niultifari- 
 
 152. I oils. 
 
 153. Alternative relief. 
 
 154. Attacking different convey- 
 
 ances. 
 
 155. Prayer of complaint — Variance 
 
 — Verification. 
 
 156. Amendment. 
 
 157. Description — Lis pendens. 
 157m. Change of venue —Territorial 
 
 jurisdiction. 
 
 § 140. Recitals of the complaint.— To successfully impeach 
 a fraudulent conveyance, it ordinarily devolves upon the 
 complainants to aver in the pleading that they were 
 creditors at the time of the alienation in controversy, 1 and 
 to state against whom the judgment proceeded upon was 
 recovered. 3 The complaint will ordinarily be considered 
 defective unless it appears upon its face that an indebted- 
 ness exists, 3 and that the plaintiff has exhausted his 
 remedy at law ; 4 and such averments cannot usually be 
 
 1 Merrell v. .Johnson, 96 III. 230 
 [Thre v. Meluui, 17 Bradw. (Ill ) 182 
 Donley v. McKiernan, 62 Ala. 34 
 Walthall v. Rives, 34 Ala. 91. Com- 
 pare Newman v. Van Duyne, 42 N. J. 
 Eq. 185. 
 
 '■ Lipperd v. Edwards, 39 End. 169. 
 See 1 lhap. IV. a bill in chancerj is 
 nol good as an attempt to sel aside a 
 fraudulent conveyance, procure d by 
 a debtor to be made to his daughter, if 
 it neither alleges thai there is a judg 
 
 nient against the father, nor that the 
 debt due at the time the conveyance 
 was made is still due, and fails to pray 
 for such relief. Ferguson v. Bobo, 54 
 Miss. 121. 
 
 Elwell v. Johnson. :; Hun (X. Y.) 
 558, 71 N. V. 80: Carpenter v. Os- 
 born, 102 N. Y. 558, 7 N. E. Rep. 
 823. 
 
 Beardsley Scythe Co v. Foster, 36 
 X. Y. 565. See Allyn v. Thurston. 53 
 N. Y 622 ; Suydam v. Northwestern
 
 §140 RECITALS OF THE COMPLAINT. .71 
 
 supplied by an allegation of a total want of property, 1 or 
 the uselessness of an execution, 2 and, if it does not appear 
 that the execution was issued to the county of the debt- 
 or's residence, or other proper county, the complaint is 
 not aided by an averment that it was returned unsatis- 
 fied. 3 It must appear that a debt or duty due to the 
 plaintiff has been in some way injuriously affected by the 
 conveyance attacked. 1 According to some of the cases 
 it is not sufficient to entitle the creditor to the aid of a 
 court of equity merely to show that the debtor made a 
 fraudulent disposition of a portion of his property. The 
 complainant must set forth that the alienation of prop- 
 erty complained of embarrassed him in obtaining satis- 
 faction of his debt, " for if the debtor has other property 
 subject to the judgment and execution sufficient to satisfy 
 the debt, there is no necessity for the creditor to resort to 
 equity." 5 An allegation that the execution has been 
 returned wholly unsatisfied, and that the defendant has 
 no other property out of which the plaintiff could collect 
 the judgment, has been held sufficient on a demurrer 
 based on the contention that these allegations failed to 
 show that the defendant did not have sufficient property 
 at the time of the conveyance. 
 
 Ins. Co., 51 Pa. St. 394; Scott v. Mc- " A.lsit v. Sanford, 23 Hun <N. Y.i 
 
 Farland, 34 Miss. 3G3 ; Cassidy v. 45. 
 
 Meacham, 3 Paige (N. Y.) 311 ; Spel- 3 Payne v. Sheldon, 63 Barb. (N. Y.) 
 
 man v. Freedman, 130 N. Y. 425, 29 176. 
 
 N. E. Rep. 765 ; Weaver v. Haviland, 4 Ullrich v. Ullrich, 68 ( !onn. 580. 
 142 N. Y. 537, 37 N. E. Rep. 641 ; Ad- 5 Dunham v. Cox, 1 * » N. J. Eq. 467. 
 sit v. Butler, 87 N. Y. 585; Wales v. A complaint alleging that an assign- 
 Lawrence, 36 N. J. Eq. 209; Easton ment was void on its face and made 
 Nat. Bank v. Buffalo Chem. Works, to hinder, delay and defraud creditors, 
 48 Hun (N. Y.) 560, 1 N. Y. Supp. 250. slates one cause of action. Pittsfield 
 See Chap. IV. Nat. Bank v. Tailer, 60 Bun (N. V l 
 
 1 See McElwain v. Willis, 9 Wend. 130, 14 X. Y. Supp. 557. 
 (N. Y.) 548; Crippen v. Hudson, 13 6 Cook v. Tibbals, 1.2 Wash. 207, 10 
 
 N. Y. 165; Beardsley Scythe Co. v. Pac. Rep. 935; Pierce v. I lower, 142 
 
 Foster, 36 N. Y. 565 ; Ryan v. Spieth, Ind. 626, 42 N. E. Rep. 228; Hartlepp 
 
 18 Mont. 47. v. Whiteley, 129 Ind. 577, 28 N I
 
 -7- 
 
 l:l l 1 1 A.LS < IF THE I I (MPLAINT, 
 
 § HO 
 
 The bill should recite facts sufficient to indicate that 
 the judgment cannot be collected without equitable aid. 1 
 This averment is material, and a decree upon proofs with- 
 out this necessary allegation is said to be erroneous, since 
 " the defendant cannot be required to meet and overcome 
 evidence not responsive to the pleadings." 3 General 
 averments of facts from which, unexplained, a conclusion 
 of law arises, are sufficient. 3 It may be here observed 
 concerning the rules of pleading that, generally speaking, 
 it is the right of an antagonistic defendant to have all the 
 material facts on which relief is sought specifically set 
 forth in the bill, to the end that such facts maybe admit- 
 ted or controverted by the answer and testimony ; and 
 usually no proofs will be admitted unless secundum alle- 
 gata} Hence, where it is the purpose of the complain- 
 ants to seek relief for creditors other than themselves, 
 such intention should be manifested by suitable aver- 
 
 Rep. 535, 31 Id. 203. But see Wind- 
 standley v. Stipp, 132 Ind. 548, 32 
 X. E. Rep. 302. 
 
 Emery \ Yount, I West Coast, 
 Rep. 499, 7 Col. 109. In an action to 
 sel aside a conveyance of land upon 
 tin- ground of fraud the complaint 
 should aver the delivery of the deed 
 claimed to be fraudulent. Doerfler v. 
 Schmidt, 04 Cal. 265, 30Pac.Rep. 810. 
 
 Thomas v. Mackey, '■'• Col. 393. In 
 Randolph v. Daly, 16 X. J. Eq. 317, 
 the court said : " It is not necessary 
 to aver thai the firm is insolvent in 
 order to entitle the complainants t<> 
 relief. The partnership property may 
 be amph sufficienl to satisfy all the 
 debts of 1 he firm, yel it rnaj be so 
 covered up, or placed beyond the 
 reach of process, as nol to be amen- 
 able to execution al law, and to ren- 
 der the interference of equity essen- 
 tial to the ends of jusl ice, All 1 hal 
 can be required is thai it should ap- 
 
 pear by the bill that the complainant 
 
 has exhausted his remedy at law, 
 and that the aid of this court is neces- 
 sary to enable him to obtain satisfac- 
 tion of his judgment.*' So the com- 
 plaint need not aver that the defend- 
 ant has transferred all his property 
 and is without means to satisfy the 
 judgment where it shows the re- 
 turn of execution unsatisfied and 
 alleges fraud in the conveyance at 
 tacked. Citizens' Nat. Bk. v. Hodges, 
 80 Hun (X. Y.) 175, 30 N. Y. Supp. 
 44.") ; Kain v. Larkin, 141 N. Y. 111. 
 36 X. E. Rep. 0. 
 
 :; Williams v. Spragins, 102 Ala. 
 430 ? l5So. Kep.'Ji; ; Pickett v. Pipkin, 
 HI Ala. 520: Burford v. Steele, 80 
 Ala. 148. 
 
 4 Burt v. Ke.ves, ] Flipp. 72. Un- 
 certainty in a pleading should he 
 reached by motion. Moorman v. 
 Shockney, 95 End. ss .
 
 §i4i 
 
 PLEADING FRAUD. 
 
 27.} 
 
 ments in the bill. It must be alleged thai the plaint ill i , 
 the owner of the unsatisfied judgment. 1 
 
 § 141. Pleading fraud. — Fraud has been said in a general 
 way to be a conclusion of law, 2 though perhaps, more 
 correctly speaking, it is the judgment of law upon fa 
 and intents.' 5 Fraud lies in the intent to deceive. 4 A 
 mere general averment that a deed was fraudulent, or that 
 it was made with the intent to hinder, delay or defraud 
 creditors, has been regarded as an insufficient method of 
 pleading. Manifestly no judgment can be given in favor 
 of a plaintiff upon grounds not stated in the complaint 
 and no relief can be extended for matters not charged.' 
 If statements showing fraud are followed by recitals 
 contradictory thereof or inconsistent therewith, the 
 pleading is insufficient, though fraud be charged." 
 " A suitor who seeks relief on the ground of fraud must 
 do something more than make a general charge of fraud." ; 
 Peckham, J., has said: "Mere general allegations of 
 fraud or conspiracy are of no value as stating a 
 cause of action." 8 There must, ordinarily, be averments 
 
 1 Ryan v. Spieth, 18 Mont. 49. 
 
 2 Horsford v. Gudger, 35 Fed. Rep. 
 388. 
 
 3 See § 13. Hutchinson v. First 
 Nat. Bk., 133 Tnd. 283, 30 N. E. Rep. 
 952. 
 
 4 Higgins v. douse, 147 N. Y. 415 ; 
 42 N. E. Rep 6. 
 
 6 Dickinson v. Banker's Loan, etc. 
 93 Va. 502. 
 
 6 Truesdell v. Sarles, 104 N. Y. 167, 
 10 N. E. Rep. 139 ; Southwick v. First 
 Nat. Bk., 84 N. Y. 420 ; Southall v. 
 Farish, 85 Va. 410, 7 S. E. Rep. 534. 
 
 1 Smith v. Wood, 42 N. J. Eq. 567, 
 7 All. Rep. 881 ; St. Louis, & S. F. Ry. 
 Co. v. Johnston, 133 U. S. 577, 10 S. ( '. 
 Rep. 390; Leasure v. Forquer, 27 
 Ore. 334, 41 Pac. Rep. 665 ; West Coast 
 18 
 
 Grocery Co. v. Stenson, 13 Wash. 
 255, 43 Pac. Rep. 35. 
 
 8 Wood v. Amory, 105 X. V. 282; 
 11 N. E. Rep. 636, citing Van Weel v. 
 Winston, 115 U. S. 228, 6 S. C. Rep. 
 22 ; Cohn v. Goldman, 76 X. Y. 284 ; 
 Knapp v. City of Brooklyn, 07 X. Y. 
 520; Cm-ran v. Olmstead 101 Ala. 692, 
 14 So.TJep. 398; Leasure v. Forquer, 
 27 ore. 334, 41 Pac. Hep. 665; Knight 
 v. Glasscock, 51 Ark. 390, 11 S.W. Rep. 
 580; Reed v. Bott, 100 Mo. 62, 12 S. 
 W Rep. 347, 14 Id. 1089. An 
 allegation thai a mortgage was 
 fraudulent is not sufficienl to allow 
 evidence thai part of the sum appar- 
 ently secured by the mortgage was 
 fictitious. Blair v. Finlay, '.'< Tex. 
 210, 12 S. \V. Rep. 983.
 
 74 
 
 I AIM \<; FRAUD. 
 
 § 141 
 
 of the facts, 1 which constitute the fraud, or which tend to 
 support the conclusion/ Relief will not be afforded 
 upon the ground of fraud unless it be made a distinct 
 allegation in the bill, so that it may be put in issue by the 
 pleadings. 3 " The words ' fraud ' and ' conspiracy ' alone, 
 no matter how often repeated in a pleading, cannot make 
 a case for the interference of a court of equity." 4 In 
 Flewellen v. Crane, 5 the averments were that a convey- 
 ance, purporting on its face to be made in payment of 
 a debt due from the grantor to the grantee, was '' fraudu- 
 lent and void as against pre-existing creditors, 1 ' and that 
 it was " made with the intent to hinder, delay, or defraud 
 said creditors." 6 There was no averment impeaching 
 
 1 In St. Louis, & 8. F. Railway Co. v. 
 Johnston, 133 U. 8. 506, 577, the court 
 say : " The material facts on which 
 the complaint relies must he so dis- 
 tinctly alleged asto put them in issue. 
 Barding v. Handy, 11 Wheat. 103. 
 And if fraud is relied on, it is not suf- 
 ficient to make the charge in general 
 terms. 'Mere words, in and of them- 
 selves, and even as qualifying adjec- 
 tive- of more specific charges, are not 
 sufficient grounds of equity juris- 
 diction, unless the transactions to 
 which they refer are such as in their 
 essential nature constitute a fraud or 
 a breacb of trust, for which a court 
 of chancery can give relief.' Van 
 Weel v. Win-ton, 115 U. S. 228, 237 ; 
 Imbler v. Choteau, 107 U. S. 586, 
 591. The defendant should not be 
 subjected to being taken by surprise, 
 
 and enougb should he stated to justify 
 the conclusion of law, though with- 
 out undue minuteness." 
 
 Pickett \. Pipkin, 64 Ala. 523 ; 
 Flewellen \. ( Irane, 58 Ala. 627 ; Gil- 
 bert v. Lewis. 1 De <;.. .1. & s. 19 ; 
 D xter \ Mc Ifee, 163 III. 508 ; Myers 
 \. Sheriff, 21 La. Ann. 1 ;•_> ; Rhpad v. 
 
 II son, 16 .Mich. 246; .lone- \. 
 
 Massej . 79 Ala 370. In a n nt de- 
 
 cision in New York, however, an 
 allegation that the conveyance was 
 without consideration and with the 
 intent to hinder, delay and defraud 
 creditors was held sufficient. Kain v. 
 Larkin, 141 N. Y. 144, 36 N. E. Rep. 9. 
 
 3 Patton v. Taylor, 7 How. 159 ; 
 Noonan v. Lee, 2 Black, 508 ; Voor- 
 hees v. Bonesteel, 16 Wall. 29 ; Beau- 
 bien v. Beaubien, 23 How. 1 90 : 
 Lewis v. Burnham, 41 Kans. 546, 
 21 Pac Rep. 572. AVhere the party 
 relying on the invalidity of the 
 conveyance is the defendant, e. </. a 
 sheriff, holding the property under 
 an attachment, it is not necessary to 
 plead fraud ; a denial of plaintiff's title 
 is sufficient. Mason v. Vestal, 88 Cal. 
 396, 26 Pac. Rep. 213; Welcome v. 
 Mitchell, SI Wis 566, 51 N. W. Rep. 
 L080 ; Holmberg v. Dean. 21 Kan. 73 ; 
 see Nat. Bank v.Barkalow, 53 Kan. 
 69, 35 Pac. Rep. 796. 
 
 1 Ambler v. Choteau, 107 U. S. 
 586, 591, 1 S. C. Rep. 556. See Dick- 
 inson v. Bankers' Loan, etc., 93 Va. 
 502. 
 
 58 \la 627. 
 
 6 See Rowland v. Coleman, 15 Ga. 
 
 204 ; .Meeker v. Hani-. 19 Cal. 278.
 
 § 141 PLEADING FRAUD. 
 
 the adequacy or bona fides of the consideration expressed ; 
 
 nor asserting that the debt was not justly due from the 
 grantor to the grantee ; no setting up a secret trust for 
 the grantor. The pleading was declared insufficient to 
 support a final decree, rendered upon a decree pro con- 
 fesso, which adjudged the conveyance void for fraud. 
 The rule is that the facts upon which the fraud is predi- 
 cated cannot be left to inference, but must be distinctly 
 and specifically averred. 1 If a bill is filed to set aside; a 
 deed upon the ground of undue influence, it is not neces- 
 sary to allege every fact showing the actual exercise of 
 undue influence, but the relations of the parties ought to 
 be stated, and the general fact of undue influence alleged, 
 and some specific instances given from which the court 
 could infer it. 3 " No rule of equity pleading is better 
 settled than that which declares that every material fact 
 which it is necessary for a complainant to prove to estab- 
 lish his rio-ht to the relief he asks must be alleged in the 
 premises of his bill, with reasonable fullness and particu- 
 larity." 3 The common-law rule was clearly settled that 
 fraud must be distinctly alleged and as distinctly proved, 
 and that it was not allowable to leave fraud to be inferred 
 wholly from the facts. While it may not be absolutely 
 essential to employ the word "fraud" in the pleading, yet 
 the facts stated should show distinctly that fraud is 
 charged. 4 The New York Court of Appeals say that the 
 use of the word "fraud" or "fraudulent," in order to 
 
 'Thomas v. Mackey, 3 Col. 393; 'Smith v. Wood, 12 X. J. Eq. 566, 
 
 Small v. Boudinot, 9 N. J. Eq. 391 ; 7 Atl. Re]>. 881. See Virginia Fire 
 
 Klein v. Horine, 47 111. 430 ; Bryan v. & .Marine [ns. Co. v. Cottrell, 85 Va. 
 
 Spruill, 4 Jones 1 Eq. (N. C.) 27; On- 864, 9 S. E. Rep. 132; Bierne v. Kay, 
 
 tario Bank v. Root, 3 Paige (N. V.) 37 W. Va. 577, 16 S. E. Rep. 804; 
 
 478; Williams v. Spragins, 102 Ala. Pusey v. Gardner, 21 W. Va. 176, 177. 
 
 424, 15 So. Rep. 247; Marston v. ' See Davy v. Garrett, 7 Ch. D. 489 ; 
 
 Dresen, 76 Wis. 418, 45 N. W. Rep. Smith v. Kay. 7 II. L. Cas. ffi3 ; Cadj 
 
 110; Smith v. Wood, 42 N. J. Eq. v. Leonard, 81 Cal. 622, 22 Pac. Rep. 
 
 563, 7 Atl. Rep. 881. 694. 
 
 2 1 Drewry's Eq. PI. 15.
 
 
 |\ I hi- \< T. NOT TO BE PLEADED. 
 
 § HI 
 
 characterize the transaction, or specify the ground of relief, 
 is not absolutely necessary. 1 Where the circumstances 
 are such as do not warrant the court in avoiding the trans- 
 action in toto, it may be avoided as an absolute convey- 
 ance, and permitted to stand as a security; 2 but such 
 relief cannot be afforded unless the complaint contains 
 allegations adapted thereto. 3 An averment of an intent 
 to defraud is one of fact, and not a statement of a conclu- 
 sion of law. 4 It must be alleged as well as proved, 5 and 
 it may be directly testified to as a fact. 6 An allegation 
 that a mortgage was not executed in good faith, but for 
 the purpose of hindering, delaying and defrauding cred- 
 itors is not sufficiently specific. 7 Where a valuable con- 
 sideration has passed, it is also necessary to charge that 
 the grantee had notice or knowledge of the fraudulent 
 
 1 Whittlesey v. Delaney, 73 N. Y. 
 575 : Warner v. Blakeman, 4 Abb. Ct. 
 App. Dec. (N. Y.) 530; Maher v. 
 Hibernia Ins. Co.. 07 N. Y. 283. See 
 Hamlen v. McGillicuddy, 62 Me. 268. 
 In Goldsmith v. Goldsmith, 145 N. Y. 
 318, the couri says: "It is true that 
 an intended fraud is not explicitly 
 and by the use of that word chai'ged 
 in the complaint, but all the facts are 
 there, fully and clearly stated, show- 
 ing the fraud attempted to be perpe- 
 trated, and all that is omitted is the 
 word or expression characterizing the 
 necessary inference. We have held 
 thai such an omission after judgment 
 
 i- Dot material where the facts tliem- 
 
 bi Ives have been sufficiently pleaded. 
 Whittlesey v. Delaney, 73 X. Y. 575." 
 low v. Ayrault, 16 Barb. 1 X. 
 \ ' 143; May on Fraudulent Convey- 
 ances, p. 235 s '',. ; 51. 
 
 Van Wyck v. Baker, 16 I Inn (X. 
 \ L71. 
 ■ Piatt v. Mead, 9 Fed. Rep. 91. 
 
 5 Genesee River Nat. Bank v. Mead, 
 18 Hun (N. Y.) 303 ; Threlkel v. Scott, 
 89 Cal. 351, 26 Pac. Rep. 879. 
 
 6 Seymour v. Wilson. 14 N. Y. 570. 
 "The complaint contains a distinct 
 charge that the assignment was made 
 to hinder, delay and defraud the 
 creditors of the assignor, and that it 
 is therefore fraudulent and void. 
 This is unexceptionable and sufficient 
 pleading, where the vice of the, instru- 
 ment is inherent in its terms. When 
 an assignment contains provisions 
 which necessarily tend to hinder, de- 
 lay, and defraud creditors, these pro- 
 visions are conclusive evidence of the 
 design of the parties to the instru- 
 ment It is not necessary in 
 
 pleading to point out the particular 
 features or clauses of the instrument 
 which arc objected to." Jessup v. 
 Hulse, 29 Barb. (N. Y.) 541 ; reversed, 
 21 X. Y 168, on another point. 
 
 'Gleason \. Wilson, 18 Kan. 500, 
 29 Pac. Rep. 698.
 
 §§ 142, 143 EVIDENCE NOT TO BE PLEADED. 
 
 design. 1 And where subsequent creditors sue, the com- 
 plaint must allege fraud as to them. 2 
 
 §142. Evidence not to be pleaded. — General certainty is 
 sufficient in pleading in equity; and though a mere gen- 
 eral charge of fraud is insufficient, it is not to be under- 
 stood that the particular facts and circumstances which 
 confirm or establish it should be minutely charged. 8 It is 
 not necessary, or proper, that pleadings at law or in equity 
 should be incumbered with all the matters of evidence 
 the complainant may intend to introduce. 4 A general 
 averment of facts — not of conclusions of law — upon 
 which the rights of the parties depend, is sufficient. By 
 the elementary rules of pleading facts may be pleaded 
 according to their legal effect, without setting forth the 
 particulars that lead to it; and necessary circumstances 
 implied by law need not be expressed in the plea. 5 So 
 much of the complaint, however, as sets out in detail the 
 inceptive steps which culminated in the alleged fraudulent 
 conveyance, is not irrelevant or redundant matter. 6 
 
 §143. Alleging insolvency.— As elsewhere shown, a vol- 
 untary conveyance is not generally regarded as fraudulent 
 per se. 7 If a debtor is perfectly solvent, he can do what 
 he will with his property so long as he does not dispose 
 of so much of it as to disable him from paying his debts. 
 This is a rule of pleading as well as of evidence. Heine 
 a bill which contained no allegation that the debtor at 
 
 1 Seeleman v. Hoagland, 19 Col. 5 Sullivan v. Iron cV silver Mining 
 
 231, 34 Pac. Eep. 995. Co., 109 U. S. 555. 
 
 3 Hutchinson v. First Nat. Bk. 133 * ; Perkins v. Center, 35 Cal. 71 1. 
 
 Ind. 285, 30 N. E. Rep. 952 ; Barrow 'Young v. Heermans, 66 N. \ 
 
 v. Barrow, 108 Ind. 345, 9 N. E. Rep. 374: Holden v. Burnham, 63 N 5 
 
 371. 75; Thomas v. Mackey, 3 Col. 390. 
 
 3 Story's Eq. PI. § 352. See §§ 93 and 208. Grover & Baker 
 
 4 Zimmerman v. Willard, 114 111. Sewing Machine Co. v. Radcliff, 63 
 370. 2 N. E. Rep. 70. Md. 496;Kain \. Larkin, 131 N Y. 
 
 306, 30 N. E. Rep. 105.
 
 278 ALLEGING [NSOLVENCY. §143 
 
 the time of the alienation was insolvent or embarrassed, 
 was held bad, 1 for it is only when an inadequate amount 
 of property remains that creditors have the legal right to 
 complain. 2 The court said that, for aught that appeared 
 in the pleading, the debtor might have been possessed of 
 ample means, other than the property in controversy, to 
 pay his debts ; and in such a case the conveyance is not 
 ordinarily open to the attack of creditors. A complaint 
 by an executor attacking a fraudulent conveyance should 
 allege the existence of debts as to which the conveyance 
 is void. 3 But it is not necesssary in the case of a volun- 
 tary conveyance to allege also that there was fraud on 
 the part of the grantee. 4 
 
 A man is said to be insolvent " when he is not in a 
 condition to pay his debts in the ordinary course, as per- 
 sons carrying on trade usually do," 5 or when all his 
 obligations could not be collected by legal process out of 
 his own means, or his means of payment are so crippled 
 and his embarrassment is so great that he cannot proceed 
 with and carry on his business in the usual course of 
 trade.' A complaint which states that " the said W. L. J., 
 
 1 BurdsaJl v. Waggoner, 4 Col. 2G1. Piatt v. Mead, 9 Fed. Rep. 91 ; Noble 
 
 Sec Merrell \. Johnson, 96 111. 23U ; v. Hines, 72 Ind. 12; Whitesel v. 
 
 McCole v. Loehr, 79 Ind. 431 ; Spauld- Hiney, 62 Ind. 168; McConnell v. 
 
 ing v. Blythe, 73 Ind. 93; Noble v. Citizens' State Bank, 130 Ind. 132,27 
 
 llin.-. 72 [nd.12; Sherman v. Hog- N. E. Rep. 616 ; Aibertoli v. Branliani, 
 
 land, 54 [nd. 578, 584; Xeyers v. SO Cal. 631, 22 Pac. Rep. 404: Mc- 
 
 Llack, 138 Ind. 263; :!7 X. E. Rep. 791 ; Connell v. Citizens' State Bank, 130 
 
 Kir,, v. Perry, 01 Me. I 15; Kings Heirs Ind. 127, 27 N. E. Rep. 616. 
 
 v. Thompson, 9 Pet. 204 ; Warner v. ■■ Walker v. Pease, 17 Misc. (N. Y.) 
 
 Dove, :;•; Md. .'>7'.t. But see Walkow 415, 41 N. Y. Supp. 219. 
 
 v. Kingsley, 45 Minn. 283, 47 X. W. * McAninch v. Dennis, 123 Ind. 21, 
 
 Rep. 807; contra, Bea.) v. Lehman- 22 N. E. Rep. 881. 
 
 Durr Co. ,110 Ala. 446, 18 So. Rep. 230; 5 Shone v. Lucas. :; Dowl. & Ry. 
 
 Snyder v. Dangler, 44 Neb. 600, 63 N. 218; Washburn v. Huntington, 78 
 
 W. Rep. 20, holding thai bad faith Cal. 573, 21 Pac. Rep. 305. 
 
 may !«■ t id even in the absence of 6 Herrick v. Burst, 4 Hill (N. Y.) 
 
 insolvency. See Sides v. Scharff, 652 ; Riper v. Poppenhausen, 43 N. Y r . 
 
 '.»:; Ala. KMi, 9 So. Rep. 228. 08, 75 ; Potter v. McDowell, 31 Mo. 73. 
 
 Lee v. Lee, 77 Ind. 253. See 1 Curtis v. Leavitt, 15 N. Y. 141.
 
 § T 44 
 
 ALLEGATIONS C< »NCERN1 \< ! I !( iNSl I >ERA I l< »\. 
 
 79 
 
 at the time of making said deed, did not have sufficient 
 property remaining, subject to execution, to pay all his 
 said debts, but by means of said conveyance rendered 
 himself wholly insolvent, and has not now, nor has, at any 
 time since said conveyance, had sufficient property, sub 
 ject to execution, out of which said debts could be made," 
 is sufficient. 1 The insolvency must exist both at the 
 time the suit was brought and the conveyance was 
 made. 2 
 
 § 144. Allegations concerning consideration. — As regards 
 allegations of consideration, the bill will be upheld if it 
 distinctly recites either of three things : First, that the 
 conveyance was wholly without consideration ; second, 
 that it was fraudulent and there was a consideration 
 which, in cases of technical or constructive fraud, the com- 
 plainant was willing to allow or has offered to return ; or 
 third, that the complainant is not informed and has no 
 means of ascertaining whether there was a consideration, 
 and that these facts are peculiarly within the defendant's 
 knowledge. In this latter case the bill should pray for a 
 discovery. 3 
 
 1 Jennings v. Howard, 80 Ind. 216. 
 See Price v. Sanders, 60 Ind. 310; 
 Miller v. Lehman, 87 Ala. 517, 6 
 So. Rep. 361 ; York v. Rock wood, 132 
 Ind. 353, 31 N. E. Rep. 1110. It is 
 said by Danforth, J., in an important 
 case before the New York Court of 
 A 1 ipeals, Van Dyck v. McQuade, 86 
 N. Y. 44 : " An individual may pur- 
 chase property, contract debts, incur 
 new liabilities, and keep on in busi- 
 ness, although he has debts unpaid ; 
 and if he does this in good faith and 
 hope of a more prosperous fortune, he 
 violates no moral or legal duty. And 
 this is so, although at the time of 
 purchase he is aware that liis prop- 
 erty is not sufficient to pay his debts 
 (Nichols v. Pinner, 18 N. Y. 295). The 
 
 principle of this rule applies to the 
 managers of corporations (Scull v. 
 Depeyster, 1 Edw. Ch. [X. V. | 513; 
 Hodges v. New England Screw Co., 
 1 R. I 312)." In Smith v. Collins. 94 
 Ala. 3!)4. 10 So. Rep. 334, il was held 
 that a person who has sufficienl prop- 
 erty amenable to legal process i" sat- 
 isfy all demands is not insolvent, 
 
 although he may not have money on 
 hand to meet his liabilities as they 
 may fall due in 1 he course "I trade. 
 
 - Petree v. Brotherton, 133 Ind. 692, 
 32 N. E. Rep. 300: Nevers \. Hack, 
 138 Ind 260, 37 X. E. Rep. 791 ; cf. 
 Coot v.Tibbals, 12 Wash. 307, 10 Pac. 
 
 Rep. 935. 
 
 ■■ Des Moines & M. i;. • !o. \. Alley, 
 16 Fed. hep. 733. See ;' 1 17.
 
 280 FRAUDULENT [NTENT — PLEADINGS IX EQUITY. §§ 145, 146 
 
 £ 145. Fraudulent intent.— It is usually of vital import- 
 ance that the creditor should allege in the bill that the 
 conveyance attacked was made with the intent to hinder, 
 delay, or defraud creditors. 1 The effect of intent, as 
 related to fraudulent alienations, is elsewhere made a 
 special subject of discussion. 2 We may here observe 
 that an averment to the effect that the grantee, the 
 debtor's wife, gave no consideration, and that the whole 
 consideration came from the debtor, sufficiently shows 
 bad faith or fraudulent intent on her part. 3 An intent 
 to defraud is properly pleaded by an allegation of such 
 intent without alleging any fact to show such intent. 4 
 There is manifestly in this regard a distinction between 
 pleading fraud and pleading fraudulent intent. 
 
 £ 146. Pleading in equity. - - The plaintiff's title and claim 
 to the assistance of a court of equity must always be ex- 
 posed by the pleadings ; but the style and character of 
 pleading in equity has always been of a more liberal cast 
 than is permitted in other courts, 5 as mispleading in mat- 
 ter of form has never been held to prejudice a party, pro- 
 vided the whole case is just and right in matter of sub- 
 stance, and supported by proper evidence. As a credit- 
 ors' bill is often brought for a discovery as well as for 
 relief, the complainant is at liberty to avail himself of 
 any objections to proceedings on the part of the defend- 
 ant affecting his rights, even though not specified or 
 charged in the bill. This rule results from the necessity 
 of the case, &s a creditor cannot be supposed to be 
 thoroughly acquainted with the conduct of his debtor 
 
 1 See Morgan v. Bogue, 7 Neb. 434; 4 Union Nat. Bank v. Reed,27Abb. 
 
 Eutchinson v. Firsl Nat. Hank, 133 N. C. 5. 
 
 h .1. 283, 30 X. E. Rep. 952. See §§ 9, See § 60. 
 
 10, 11. "Tiernan v. Poor, 1 Gill & J. (Md.) 
 
 ■ hap. XIV. See§3 9, 10. 11. 21G ; 19 Am. Dec. 225. See § CO. 
 
 8 Newman v. Cordell, 1:; Barb. (N. Ridgely v. Bond, 18 Md. 450 ; Warner 
 
 Y. 148. v. Blakeman, 4 Keyes (N. Y.) 507.
 
 §§ 14/, 14 s SEEKING DISCOVERY EXCUSING I VCIIES. _\X I 
 
 toward third persons, especially when, as is generally the 
 case in fraudulent transactions, efforts have been made to 
 conceal the circumstances from the public. 1 
 
 § 147. Seeking discovery. — The complainant, especially 
 if he is prosecuting in a representative capacity, as, for 
 instance, an assignee in bankruptcy, in seeking to set 
 aside a fraudulent conveyance of real and personal prop- 
 erty, has the right, as ancillary to the principal relief, to 
 have a discovery from the defendants, and he properly 
 seeks it with a view to supply the deficiency in his own 
 knowledge ; and his ignorance of the particulars sought 
 not only entitles him to the discovery, but excuses the 
 want of more precise specification of the particular fraud 
 alleged. 3 Since parties in interest have been allowed to 
 give testimony as witnesses, bills of discovery have been 
 in a measure superseded. 3 
 
 § 148. Excusing laches — Concealment of fraud. — It fre- 
 quently becomes vitally important to excuse, by appropri- 
 ate recitals in the bill, apparent laches on the part of the 
 creditor in commencing the suit. 4 In Forbes v. Overby, 5 
 which was a bill filed by an assignee, charging fraud and 
 conspiracy, and praying for a discovery and disclosure, the 
 defendants contended, upon a motion to dissolve an injunc- 
 tion, that the bill was insufficient in form and substance, 
 and ought to be dismissed ; first, because of complain- 
 ant's laches in bringing this suit (it having been brought 
 
 1 Burtus v. Tisdall, 4 Barb. (N. Y.) Y.) 283 ; Mountford v. Taylor, 6 V, 
 580. Jr. 788. 
 
 2 Verselius v. Verselius, 9 Blatchf. 3 Field v. Hastings A Bradley 
 190, per Woodruff, J. Cargill v. Co., 65 Fed. Rep. 279: Preston v. 
 Kountze, 86 Tex. 386, 22 8. W. Rep. Smith, 06 Fed. Rep. 884; Ex parte 
 1015, 25 Id. 13. See Bowden v. Boyd, 105 U. S. 657. 
 
 Johnson, 107 U. S. 263, 2 S. C. l Lant v. Morgan's Admr. , 43 U. S. 
 
 Rep. 246, per Blatchford, J. : Ex App. 623. 
 
 parte Boyd, 105 U. S. 653, 655 : Hen- 5 4 Hughes, 441, 444. 
 
 dricks v. Robinson, 2 Johns. Ch. (N.
 
 EXCUSING LACHES. § 148 
 
 within a year from the discovery of the clue to the fraud) ; 
 and second, because the bill failed to set forth specifically 
 the impediments to an earlier prosecution of the claim. 
 It was objected that the bill did not explain why the com- 
 plainant had remained in ignorance of his rights, and that 
 it failed to recite the methods employed by defendants to 
 fraudulently keep the complainant in such ignorance ; and 
 that it did not disclose how and when the complainant 
 first came to a knowledge of the matter alleged as the 
 basis of the suit. The court observed that there had been 
 a great variety of decisions upon the question as to 
 what lapse of time was sufficient to bar cases of this 
 character, and declared the general rule to be that each 
 suit must be governed by its own peculiar circumstances. 
 The case under consideration, being a bill for a discovery, 
 was distinguished by the court, on that ground, from 
 Badger v, Badger, 1 and it was said that a court would not 
 compel a complainant, who was manifestly ignorant of the 
 particulars of a fraud, to set out in his bill the very par- 
 ticulars concerning which a disclosure was sought. 
 
 Lord Erskine said : " No length of time can prevent 
 the unkennelling of a fraud." In Alden v. Gregory, 3 
 Lord Northington exclaims: "The next question is in 
 effect whether delay will purge a fraud? Never while I 
 sit here ! Every delay arising from it adds to the injus- 
 tice, and multiplies the oppression." Mr. Justice Story 
 stated the rule as follows :* "It is certainly true that 
 length of time is no bar to a trust clearly established ; 
 and in a case where fraud is imputed and proved, length 
 of time ought not, upon principles of eternal justice, to 
 be admitted to repel relief. On the contrary, it would 
 seem that the length of time during which the fraud has 
 been successfully concealed and practiced is rather an 
 
 2 Wall 87, and infra. a Prevosi v. Gratz, 6 Wheat. 497. 
 
 2 Eden, 285
 
 § 149 EXPLAINING DELAY. 283 
 
 aggravation of the offense, and calls more loudly upon 
 a court of equity to give ample and decisive relief." It 
 must be remembered, however: First, that the trust 
 must be "clearly established;" second, that the facts 
 must have been fraudulently and successfully concealed 
 by the trustee from the knowledge of the cestui que 
 trust} Long acquiescence and laches by parties out of 
 possession, are productive of much hardship and injustice 
 to others, and cannot be excused but by showing some 
 actual hindrance or impediment caused by the fraud or 
 concealment of the parties in possession which will 
 appeal to the conscience of the chancellor. The party 
 who makes such an appeal should set forth in his bill 
 specifically what the impediments to an earlier prosecu- 
 tion of his claim were, 3 how he came to be so long igno- 
 rant of his rights, and the means used by the respondent 
 to fraudulently keep him in ignorance; and how and 
 when he first came to a knowledge of the matters alleged 
 in the bill. Otherwise the courts will not grope after the 
 truth of facts involved in the mists and obscurity conse- 
 quent upon a great lapse of time. 3 
 
 §. 149 Explaining delay — Discovery of fraud. — In cases 
 where it is sought to avoid the statute of limitations, or 
 
 'Badger v. Badger, 2 Wall. 92. In from the facts pleaded. As in the 
 
 Felix v. Patrick, 145 U. S. 331, 12 S. case of any oilier Legal conclusion, ii 
 
 C. Rep. 862, the court say : " We is not sufficient to make a mere 
 
 are left to infer that his concealment averment thereof, bul tin' facts from 
 
 was that of mere silence, which is not which the conclusion follows musl 
 
 enough. Wood v. Carpenter, 101 U. themselves be pleaded." LadyWash- 
 
 S. 135, 143; Boyd v. Boyd, 27 Ind. ington Consol. Co. v. Wood, 113 Cal. 
 
 429; Wynne v. Cornelison, 52 Ind. 486. 
 312." ;; Mammon. 1 v. Hopkins, 1 13 I'. S. 
 
 2 " ' Discovery ' and 'knowledge' 252, 12 S. C. Rep. 418; PearsalJ v. 
 
 are not convertible terms, and Smith, 149 I'. S. 236, 13 S. C. Rep. 
 
 whether there has been a ' discov- KM ; Kirby v. Lake Shore, etc. R. I.'. 
 
 ery' of the facts 'constituting the Co., 120 U. S. 137,7 S. < '. Rep. 130; 
 fraud,' within the meaning of the . Wollensak \. Reiher, 115 U. S. 101, 
 
 statute of limitations, is a question of 5 S. C. Rep. 1 137. 
 law to be determined by the court
 
 284 DISCOVERY OF FRAUD. § 149 
 
 rather to come within the exception to it, the plaintiff has 
 been held to stringent rules of pleading and evidence. 
 " Especially must there be distinct averments as to the 
 time when the fraud, mistake, concealment, or misrepre- 
 sentation was discovered, and what the discovery is, so 
 that the court may clearly see whether, by ordinary dili- 
 gence, the discovery might not have been before made." 1 
 This is necessary to enable the defendants to meet the 
 fraud and disprove the alleged time of its discovery. 2 
 A general allegation of ignorance at one time, and of 
 knowledge at another, is of no effect. If the plaintiff 
 made any particular discovery, it should be stated when 
 it was made, what it was, how it was made, and why it 
 was not made sooner. 3 Fraud that will arrest the run- 
 ning of the statute must be secret and concealed, and not 
 patent or known. 4 The party seeking to elude the stat- 
 ute by reason of fraud must aver and show that he used 
 due diligence to detect it; b and if he had the means of 
 
 Wood v. Carpenter, 101 U. S. 140; S. C. Rep. 382; Bailey v. (Mover, 21 
 
 Stearns v. Page, 7 How. 819, 829; Wall. 342 ; Gifford v. Eelms,98U.S. 
 
 National Bank v. Carpenter, 101 U. S. 248 ; Upton v. McLaughlin, 105 U. S. 
 
 .-)UT ; Rosenthal v. Walker, 111 U. S. 640. 
 
 190, 4 S. C. Rep. 382; Wollensak v. * In Hardt v. Heidweyer, 152 U. 
 
 Reiher, 115 U. S. 96, 5 S. C. Rep. 1137 ; S. 558, 560, 14 S. C. Rep. G71, 
 
 Ajrnett v. Coffey, 1 Col. App. :!4, the court says: "It is well settled 
 
 27 Pac. Rep. 014 ; .Morrill v. Little that a party who seeks 1.) avoid the 
 
 Falls Mfg. ('<>.. ,-,;; Minn. 371, 21 L. R. circumstances of an apparently un 
 
 A. 171, 55 X. W. Rep. 547. reasonable delay in the assertion of 
 
 'Moore v. Greene; 1!) How. 72; his rights on the ground of ignorance 
 
 Beaubien v. Beauhien, 23 Id. 190 ; must allege and prove, not merely 
 
 Badger v. Badger, 2 Wall. 95. the fact of ignorance, l>nt also when 
 
 • hit v. Hilton, 1 (int. C. C. 230. and how knowledge was obtained, in 
 
 1 Martin v. Smith, 1 Dill. 85. This order that the court may determine 
 
 Case Contains a full review Of the an- whether reasonable ell'ort was made 
 
 thorities. See also McLain v. Ferrell, by him to ascertain the facts 
 
 1 Swan (Tenn.) 4S ; Buckner v. Cal- Tested by this rule, it is apparent 
 cote, 28 Miss. 432; Cook v. Lindsey, that this bill must be held deficient 
 
 :;i MiSB. 451 : I'baleii \. Clark. 1!) in not showing how knowledge 
 
 Conn. 121; Moore v. Greene, 2 Curt, of the wrongs complained of wasob- 
 C. C 202, affi'd 19 Bow. (ii), 72; tained by the plaintiffs. It is alleged 
 Rosenthal v. Walker, 111 U. S. 189, A that they were ignorant, and now
 
 § 149 Disci (VERY I )l I k \i D. 
 
 discovery in his power he will be held to have known it.' 
 In Cole v. McGlathry, 2 it appeared that the plaintiff had 
 provided the defendant with money to pay certain debts. 
 The defendant falsely affirmed that he had paid them, 
 and fraudulently kept possession of the money. It was 
 decided that the plaintiff was not entitled to recover for 
 the reason that he had at all times the means of dis- 
 covering the truth of the statements by making inquiries 
 of the parties who should have received the money. This 
 principle is further illustrated in the analogous case of 
 McKov/n v. Whitmore, 3 in which it appeared that the 
 plaintiff had handed the defendant money to be deposited 
 for the plaintiff in bank. The defendant told the plain- 
 tiff that he had made the deposit. It was held that even 
 though the statement was false, and made with a fraudu- 
 lent design, the plaintiff could not recover because he 
 might at all times have inquired at the bank and learned 
 the truth. 4 In Boyd v. Boyd, 5 it was ruled that the con- 
 cealment which would avoid the statute must go beyond 
 mere silence. It must be something done to prevent dis- 
 covery. The concealment must be the result of positive 
 acts. 6 An allegation that the defendants pretended and 
 professed to the world that the transactions were bona fide 
 was looked upon as being too general. In Wood v. Car- 
 penter, 7 a pleading which reads as follows : *' And the 
 
 have knowledge: and that they ac- 14 8. C. Rep. 071 ; Stearns v. I 
 
 quired such knowledge within a 7 How. 829. 
 
 month prior to bringing the suit : but - 9 Me. 131. 
 
 how they acquired it, and why they :; 31 Me. 448. 
 
 did not have the same means of as- 4 See, further, Rouse v. Southard, 
 
 certaining the facts before, is not 39 Me. 404 ; Woods v. James, 87 Ky. 
 
 disclosed." 513, 9 S. W. Rep. 513. 
 
 1 Buckner v. Calcote, 28 Miss. 432, 5 27 Ind. 429; Dorsey Machine ('■-. 
 
 434. See Nudd v. Hamblin, 8 Allen v. McCaffrey, 139 In- 1. :.:,;. 38 K 
 
 (Mass.) 130. Compare Baldwin v. Rep. 208. 
 
 Martin, 35 N. Y. Super. Ct, 98; Bar- ' Stanley v. Stanton, 36 Ind. 145. 
 
 lowv. Arnold. 6 Fed. Rep. 355; Erick- ' 101 U.S. 135; Hard) v. II. M 
 
 son v. Quinn, 3 Lans. (N. Y.) 302 ; weyer, 152 U. S. 559, lis < . Rep. 671. 
 Hardt v. Heidweyer, 152 U. S. 559,
 
 
 DISCOVERY OF FRAUD. 
 
 § '49 
 
 plaintiff further avers that he had no knowledge of the 
 
 facts so concealed by the defendant until the year a. D. 
 i S 7 2 , and a few weeks only before ^the bringing of 
 this suit," was held to be clearly bad. The court in 
 this case, in a critical and exhaustive opinion, review 
 many of the cases which have just been considered, and 
 then observe that a wide and careful survey of the 
 authorities leads to the following conclusions: First, 
 the fraud and deceit which enabled the offender to do the 
 wrong may precede its perpetration. The length of time 
 is not material, provided there is the relation of design 
 and its consummation. Second, concealment by mere 
 silence is not enough. There must be some trick or con- 
 trivance intended to exclude suspicion or prevent inquiry. 
 Third, there must be reasonable diligence, and the means 
 of knowledge are the same thing in effect as knowledge 
 itself. Fourth, the circumstances of the discovery must 
 be fully stated [pleaded] and proved, and the delay which 
 has occurred must be shown to be consistent with the 
 requisite diligence. 1 
 
 In New York the statute expressly provides that, 
 in actions to procure a judgment other than for a sum of 
 
 1 In Erickson v. Quinn, 47 X. Y. 
 II:;. Rapallo, .1., said : "The funda- 
 mentaJ fait from which the conclu- 
 sion of a fraudulent intent is 
 drawn, is i lie absence of any valu- 
 able consideration for the convey- 
 ance. So long as tin' creditor was 
 ignoranl of thai essential ami con- 
 trolling fact, the statute ought not 
 to run againsl him." In Dorsey 
 Machine < !o. v. Mc( Jaffrej , 139 Ind. 
 39 X. E. Rep. '.'us, thecourl says : 
 •'In -nit- of equitj t he decided weigh! 
 of authority is in favor of the propo- 
 sition t li.it « here a pari \ has been 
 injured by l he fraud of am 't her, and 
 1 1 and i concealed, or is of such 
 cha > ■ conceal it -ell', whereby 
 
 the injured party remains in igno- 
 rance of it without any fault or want 
 of diligence on his part, the bar of the 
 statute does not begin to run until 
 the fraud is discovered, though there 
 be no special circumstances or efforts 
 on tlie part of the person committing 
 the fraud to conceal it from the 
 knowledge of the other party. Wear 
 v. Skinner, 46 Md. 265 ; Booth v. 
 Warrington, 1 lit.,, I'. ( '. Ki:; ; Fisher 
 v. Tuller, 12-2 Ind. 31, 2:! N. E. Rep. 
 523; Stearns v. Page, 7 How. (TJ. S.) 
 819 : Moore v. Greene, lit Bow. 1 1'. 
 s i 69 : Sherwood v. Sutton, 5 Mason. 
 il'.S) l l:; ;Snodgrass v. Branch I'.k., 
 25 Ala. 161."
 
 g T 50 COMPLAINTS BAD FOK Ml I Ml UlIOUSNESS. 
 
 money, on the ground of fraud, the cause of action is not 
 deemed to have accrued till the discover)- of the facts 
 constituting the fraud.' It has been held that a knowl- 
 edge of the fraud will he imputed where a party 
 deliberately shuts his eyes to the facts which call for 
 investigation, 3 though this question of what constitutes 
 notice is one that is much debated. 
 
 >J 150. Complaints bad for multifariousness. — Judge Story 
 says that multifariousness is " the improperly joining in 
 one bill distinct and independent matters, and thereby 
 confounding them; as, for example, the uniting in one 
 bill of several matters, perfectly distinct and unconnected, 
 against one defendant, or the demand of several matters 
 of a distinct and independent nature against several 
 defendants in the same bill." 3 It is also said : " What is 
 more familiarly understood by multifariousness as applied 
 to a bill, is where a party is brought as a defendant upon a 
 record, with a large portion of which, and of the case made 
 by which, he has no connection whatsoever." 4 In United 
 States v. Bell Telephone Company, 5 Mr. Justice Miller 
 used these words : " The principle of multifariousness is 
 one very largely of convenience, and is more often 
 applied where two parties are attempted to be brought 
 together by a bill in chancery who have no common 
 interest in the litigation, whereby one party is compelled 
 to join in the expense and trouble of a suit in which he 
 and his co-defendant have no common interest, or in 
 which one party is joined as complainant with another 
 party with whom in like manner he either has no interest 
 at all, or no such interest as requires the defendant t<> 
 
 1 N. Y. Code Civ. Proc. § 382. Story's Ex. PI. ; 271. See Walker 
 
 2 Higgins v. Crouse, 147 N. Y. 411, v. Powers, 10! U. S. 251. 
 
 42 N. E. Rep. 6. Set', also, Gillespie 'Story's Eq. PI. § 530. See Camp 
 
 v. Cooper, 36 Neb. 775, 55 V W. Rep. bell v. Mackay, 1 Mylne & Cr. 61 I 
 302. ' L28 U.S. 352.
 
 288 
 
 II I U3INGS lll-.l.li NOT MULTIFARIOUS. 
 
 § 151 
 
 litigate it in the same action." 1 The authorities bearing 
 upon this question are very numerous, but there is deduci- 
 ble from them all no positive inflexible rule as to what, in 
 the sense of courts of equity, constitutes multifariousness, 
 which is fatal on demurrer. 2 Indeed it seems to be 
 generally recognized as an impossibility to formulate a 
 general rule as to what is considered multifariousness ; 
 every case must be governed by its own circumstances, 
 and the court must exercise a sound discretion on the 
 subject. 3 The rule in relation to multifariousness, say 
 the Supreme Court in Iowa, is one of convenience, and 
 though the matters set forth in the pleadings are distinct, 
 yet if justice can be administered between the parties 
 without a multiplicity of suits, the objection will not pre- 
 vail. 4 The objection that the bill is multifarious is 
 always discouraged by the courts when, instead of 
 advancing, it will defeat the ends of justice. 5 
 
 § 151. Pleadings held not multifarious. — Such being the 
 general condition of the authorities as to multifarious plead- 
 ings, it follows that the practitioner must rely upon 
 
 ' Citing Oliver v. Piatt, 3 How. 
 333; Walker v. Powers, 104 U. S. 
 245 
 
 1 De Wolf v. Sprague Mfg. Co., 
 49 Conn. 292. See generally Att'y 
 General v. Cradock, 3 Mylne & Cr. 
 85 ; Knye v. Moore, i Sim. & S. 01 ; 
 Kensington v. White, :'. Price, 164; 
 I lornwell v. Lee, 11 I lonn. 524 ; Mid- 
 dletown Sav. Bank v. Baoharach, 46 
 Conn. 522 ; Board of Supervisors v. 
 Deyoe 71 X Y. 225; Brinkerhoff v. 
 Brown, 6 Johns. Ch.(N. Y.i 151 ; New 
 York, & X. II. I: I.'. Co. v. Schuyler, 
 i; X. Y. 608. 
 
 ( raines v. Chew, 2 I tow. 619 ; 
 Oliver v. Piatt, :: How. 333. See .Me. 
 Lean v. Lafayette Bank, :! McLean, 
 LIS ; A.bbo1 \. Johnson, 32 X. II. 26 ; 
 
 Carter v. Kerr, 8 Blackf. (Ind.) 373 ; 
 Butler v. Spann, 27 Miss. 234 ; Brown 
 v. Haven, L2 Me. 164; Richards v. 
 Pierce, 52 Me. 560; Warren v. War- 
 ren, 56 Me. 360; Bugbee v. Sargent, 
 23 Me. 269 ; Weston v. Blake, (il Me. 
 452. See § 132. 
 
 4 Bowers v. Keesecher, 9 Iowa, 422. 
 Marshall v. Means, 12 Ga. 61 ; 
 Stephens v. Whitehead, 75 Ga. 298. 
 Where two distinct subjects are em- 
 braced in a bill, e. (/.. the avoidance 
 of a marriage settlement ami the 
 
 annulment of a will, though the 
 necessary parties to the suit may he 
 the same, their interests and attitude 
 are decidedly at variance, ami the 
 
 hill is had for multifariousness. Mc- 
 Donnell v. Baton, 18 Fed. Rep. 710.
 
 § 15' PLEADINGS III. I I) NOT Ml I III VRK I 289 
 
 instances, and illustrations drawn from reported cases, for 
 his guidance. 
 
 In a suit before the Supreme Judicial Court of New 
 Hampshire, 1 it was decided that it was not multifarious to 
 join in a creditor's bill, as parties defendant with the debtor, 
 several persons to whom he conveyed distinct parcels « if 
 property, out of which the creditor sought satisfaction of 
 his debt, although such persons might have no common 
 interest in the several parcels conveyed/-' And in I Hmrnock 
 v. Bixby, 3 it was held that a demurrer for multifariousness 
 would hold good only when the plaintiff claimed several 
 matters of a different nature, and not when one general 
 right was asserted, although the defendants might have 
 separate and distinct rights. The same principle is recog- 
 nized in Boyd v. Hoyt. 4 That was a case of a creditor's 
 bill brought to reach property of a judgment-debtor which 
 has been fraudulently transferred to two or more persons 
 holding different portions of it by distinct conveyances, 
 and it was decided that such persons might be joined. 
 The chancellor lays it down that when the object of a suit 
 is single, but different persons have or claim separate inter- 
 ests in distinct or independent matters, all connected with 
 and arising out of the single object of the suit, the com- 
 plainant may bring such persons before the court as 
 defendants, so that the whole object of the bill may be 
 effected in one suit, and further unnecessary and useless 
 litigation prevented. The case of Morton v. Weil 8 is an 
 important illustration in point. Creditors by different judg- 
 ments united in brineinea suit against the executors under 
 the will of a decedent, alleging the fraud of that person in 
 
 1 Chase v. Searles, 45 N. H. 519. The debtor and all persons through 
 See Hale v. Nashua & L. R. R., 60 N. whom hr lias conveyed the prop* n\ 
 H. 339. as well as the pi*esen1 holder ma\ '"• 
 
 2 See §§ 54, 55, 132. j<>i I. Crafl \. Wilcox, 102 Via. 
 
 3 20 Pick. (Mass.) 377. 378, 1 I So. Rep. 653. 
 
 4 5 Paige (N. Y.) 05. See Rineharl 5 33 Barb. (X. Y. 1 30. 
 v. Long, 95 Mo. 396, 8 S. W. Rep. 559. 
 
 19
 
 290 PLEADINGS HELD NOT MULTIFARIOUS. § I 5 I 
 
 contracting the debts, and joined as defendants various par- 
 ties having liens upon, or title to, the property in question 
 by reason of judgments or assignments, alleging that such 
 liens or titles were fraudulently obtained, and praying that 
 the same might be vacated, and the defendants compelled 
 to account for and pay over the property. On demurrer to 
 the bill it was decided that the parties to it were properly 
 joined, and that in other respects it was sufficient. 1 In 
 anothercase, 2 a creditors' bill filed against the debtor and his 
 grantees, for the purpose of setting aside a number of volun- 
 tary conveyances, severally made to each of the parties, was 
 held to be good. And in Harrison v. Hallum, 3 the court 
 say that it is proper, where there are several judgment-debt- 
 ors in the same judgment, and one of them has made a 
 fraudulent conveyance to one grantee, and another has 
 made a similar conveyance to another grantee, and a third 
 has made a like conveyance to still another grantee, to 
 unite all the debtors and their several fraudulent grantees 
 in one common bill for the relief of the judgment-cred- 
 itors. Again, where a debtor, with intent to defraud his 
 creditors, purchased land, causing the deed to be made 
 to his wife, who participated in the fraud, and conveyed 
 the land to another person with the same intent, who in 
 turn conveyed it to a third, both grantees being cognizant 
 of the fraud, it was held, in an action brought by a cred- 
 itor to set aside the conveyances, that both transactions 
 being of the same nature, though different in form, could 
 be properly joined in the same complaint. 4 A bill is not 
 
 See Lawrein •<• v. Hank of the Re- Hicks v. Campbell, 1!) X. J. E<]. 183; 
 
 public, 35 N. V. 320 : Reed v. Stryker, Randolph v. Daly, 16 N. J. Eq. 313. 
 
 L2 Abb. Pr. (N. Y.) IT; Fellows v. -Williams v. Neel, 10 Rich. Eq. (S. 
 
 Fellows, 1 Cow. (N. Y.i 682; Lewis v. C.) 338. 
 
 St. Albans Iron and Steel Works, 50 5 CJoldw. (Tenn.) 525. 
 
 \i. 181 : \xnold \. Arnold, II W. Va. 'North v. Bradway, 9 Minn. is;?. 
 
 449; Shafer \. O'Brien, 31 W. Va. See Jones v. Morrison, 31 Minn. 140, 
 
 606, 8 S. E. Rep. 298. See, further, 16 N. W. Rep. 854. 
 Way v. Bragaw, 16 N. J. Eq. 213 ;
 
 §152 PLEADINGS HELD NOT MULTIFARIOl 2f)I 
 
 regarded as multifarious, though brought to recover dif- 
 ferent portions of the estate of a debtor from several 
 defendants, if the alleged illegal transfers were the result 
 of a common purpose on the part of the defendants to 
 dismember the estate. 1 
 
 § 152. — The cases upon this subject are almost without 
 number. In De Wolf v. Sprague Mfg. Co., 3 it appeared 
 that the plaintiff held a judgment lien upon certain real 
 estate upon which a trust-mortgage had been executed, 
 which, if valid, was entitled to priority. The suit was 
 brought to set aside or postpone the mortgage, on the 
 ground that it was void against the complaining creditor, 
 and for a foreclosure of the judgment lien, and for pos- 
 session, and the mort^a^ors and the trust-mort^aofee 
 were made defendants. The court, after protracted argu- 
 ment and an extended review of the authorities, held that 
 the bill was not multifarious. In Parker v. Flagg, 8 the 
 court says: "The bill is brought by the executor, repre- 
 senting all the creditors of an insolvent estate, to set 
 aside conveyances made by the testator of all his prop- 
 erty, real and personal, in fraud of those creditors, to his 
 wife, who is the sole defendant ; some of the property 
 consists of mortgages, to recover which the plaintiff has 
 no adequate remedy at law ; all the conveyances appear 
 to have been part of one scheme, and no objection is, nor, 
 it would seem, could be taken to the bill for multifarious- 
 ness. The demurrer was erroneously sustained, and 
 should have been overruled."* It is perhaps unnecessary 
 to further multiply illustrations. Some of the cases have 
 certainly gone to an extreme limit, and parties have been 
 
 1 Van Kleeck v. Miller, per Choate, 2 49 ( lonn. 282. 
 
 J.. 19 N. B. R. 486; citing Boyd v. 3 127 Mass 
 
 Hoyt, 5 Paige (N. Y.) 65; Piatt v. 4 Chase v. Redding, 13 Graj 
 
 Preston, 19 N. B. R. 241. See Brad- 418; Welsh v. Welsh, 105 Mass. 
 
 ner v. Holland, 33 Hun (N. Y.) 290. Gilson v. Butchiuson, 120 Mass. 27.
 
 2Q2 ALTERNATIVE RELIEF. § 1 53 
 
 held together as defendants in one action by a very 
 slender thread of reasoning. The St. Louis Court of 
 Appeals, commenting upon the subject, says: "The 
 principle that it is not sufficient that the defendants are 
 all concerned in some general charge, such as fraud on 
 the part of the debtor, or that as grantees of distinct 
 properties by distinct conveyances they obtained title 
 through him, but that all the defendants should at least 
 have an interest in the principal point in issue in the case, 
 is surely of some value as a general test. In cases like 
 the present it would be decisive. Here there is no mate- 
 rial issue in which all the defendants have a common 
 interest, and consequently no tie to make them defend- 
 ants in one suit It is obvious that, merely from 
 
 convenience to plaintiffs, the defendants ought not to be 
 put to the trouble and expense of litigating matters with 
 which they are unconnected." 1 These observations were 
 made in a case in which there were twenty defendants 
 having a common source of title from an alleged fraudu- 
 lent grantor; the conveyances were separate and made 
 at different times, and the defendants were beneficiaries 
 and trustees indiscriminately joined. The bill was pro- 
 nounced multifarious. The decision, however, can 
 scarcely be harmonized with some of the authorities 
 already discussed. 2 
 
 § 153. Alternative relief. — In Alabama it was held that 
 a creditors' bill maybe filed for a double purpose ; asking 
 in the alternative to have two or more conveyances can- 
 celled as intended to hinder, delay, and defraud creditors, 
 or to have them construed as together constituting a 
 general assignment inuring, under the statute of that 
 State, to the benefit of all the insolvent's creditors 
 
 1 Bobb v. Bobb, 8 Mo. A.pp. 260. Carious, see Richmond v. Erons, LSI U. 
 \ to lolls held not t.. be multi- S. 27, 7 S. C.Rep. 788.
 
 §§ 154. ! 55 PRAYER OF C< tMPLAINT. 
 
 equally. 1 But in a later case in that State/ 2 the court 
 feel constrained to depart from and overrule the decision 
 upon this point. 
 
 § 154. Attacking different conveyances. — The fact that a 
 plaintiff seeks to set aside two or more conveyances as 
 fraudulent, does not require that each conveyance shall 
 be set forth in a separate paragraph as the basis of a 
 separate cause of action. They constitute but one cause 
 of action, the fraudulent disposition of his property by 
 the judgment-debtor. 3 
 
 § 155. Prayer of complaint —Variance — Verification. — As 
 a general rule in the modern procedure a mistake in the 
 demand for relief is not fatal. 4 In Buswell v. Lincks/' 
 the court said: "The point is made that the bill was 
 framed upon the basis of a claim that there had been a 
 fraudulent trust-deed, and a receiver had been prayed for, 
 while the relief given in setting aside the fraudulent con- 
 veyance and adjudging a sale of the leasehold under 
 execution was inconsistent with the prayer of the com- 
 plaint. The sufficient answer to this proposition is, that 
 the judgment was such as the court was bound to give 
 upon the allegations and proofs without reference to the 
 relief demanded." It may adapt the relief to the exi- 
 gencies of the case. And where the bill, in addition to 
 the general demand for relief, contained a prayer that a 
 deed be set aside, it was held that, merely because of a 
 prayer that the defendant be decreed to give the com- 
 plainant possession of the land, the bill would not be 
 
 1 Crawford v. Kirksey, 50 Ala. 591. gregation, etc., St. Francis, 138 N. Y. 
 
 8 Lehman v. Meyer, 67 Ala. 404; 459, 34 N. E. Rep. 281 ; Valentine v. 
 
 Moog v. Talcott, 72 Ala. 210. Richardt, 12G N. Y. 277, 27 N. E. Rep. 
 
 3 Strong v. Taylor School Town- 255 ; Murtha v. Curley, 90 N. Y. 372. 
 ship, 79 Ind. 208. See Wright v. B 8 Daly (N. Y.) 527. 
 
 Mack, 95 Ind. 332. 6 Dudley v. Congregation, etc., St. 
 
 4 See Bell v. Merrifield, 109 N. Y. Francis, 138 N. Y. 459, 34 N. E. Rep. 
 202, 10 N. E. Rep. 55 ; Dudley v. Con- 281.
 
 294 PRAYER OF COMPLAINT. § 155 
 
 treated as a bill for possession, nor dismissed on the 
 ground that ejectment was the proper remedy. 1 As a 
 general rule complainants are entitled under a prayer for 
 general relief, to any judgment consistent with the case 
 made in their bill,"' but they are not usually entitled to a 
 decree covering and including matters not referred to in 
 the pleadings, and as to which the respondents have 
 never had their day in court.' 5 The court will not hesi- 
 tate to dismiss a bill which presents a case totally differ- 
 ent from the testimony in the record; 4 and no decree 
 can ordinarily be made on grounds not stated in the bill. 5 
 " The rule is explicit and absolute, that a party must 
 recover in chancery according to the case made by his 
 bill or not at all, 'secundum allegata] as well as 'pro 
 bata. 1 '' G Matters not charged in the bill should not be 
 considered on the hearing. 7 If, however, the special 
 prayers are inapt and incongruous, and so framed that no 
 relief can be granted under them, the court under the 
 prayer for general relief may render any appropriate judg- 
 ment consistent with the case made by the bill. 8 Courts 
 of equity give judgment for money only where that is all 
 the relief needed. 9 The bill may be framed in a double 
 aspect, and ask for relief in the alternative, but the state 
 of facts upon which relief is prayed must not be incon- 
 sistent. 1 " The prayer of the complaint is sometimes 
 
 1 Miller v. Jamison, 24 N. J. Eq. 41. Wright v. Delafield, 25 N. Y. 266; 
 
 SeeSedg. & Wail on Trial of Title to Gordon v. Reynolds, 114 111. 123, 28 
 
 Land, 2nd ed., .: 169. N. E. Rep. 455. 
 
 Bell v. Merrifield, 109 X. Y. 206, 8 Bailey v. Ryder, 10 X. Y. 370; 
 
 16 N. E. Rep. 55. Clark v. Krause, 2 Mackey (D. C.) 
 
 Wilson v. Borr, 15 Iowa. 492; 573 ; Eyre v. Potter, 15 How. 42. 
 
 Tripp v. Vincent, 3 Barb. Ch. (N. Y.t • Eunter v. Hunter, 10 W. Va. 821. 
 
 613; Parkhursl v. McGraw, 24 Miss. ' Annin v. Annin, 24 N. J. Eq. 188. 
 
 L39; Hovey v. Holcomb, 11 111. 660. ' Bell v. Merrifield, 109 X. Y. 807, 
 
 • Roberts r.Gibson.6 II. &J. (Md.) 10 N. E. Rep. 55; Murtha v. Curley, 
 
 123; TruesdeU v. Sarles, 104 N. Y. 90 N. Y. 872. 
 
 10 N. E. Rep. 139. 10 Zell Guano Co. v. Heatherly, 38 
 
 i..\ v. Ryder, 10 X. Y. 303; W. Ya. 410, 18 S. E. Rep. 611.
 
 § 156 AMENDMENT. 
 
 resorted to in determining whether the action is legal or 
 equitable, and the court will be guided by the relief asked 
 in reaching a conclusion. 1 
 
 The objection that a bill is not verified is immaterial, 
 as a bill in equity need not usually be sworn to unless it 
 is sought to use it as evidence upon an application for a 
 provisional injunction or other similar relief. 2 
 
 § 156. Amendment. — A variance between the actual date 
 of the judgment and that set forth in a creditors' bill 
 based on it, may be corrected by amendment at any time 
 during the proceedings ; but as the complainant is not 
 absolutely confined to the exact date stated in the bill the 
 amendment may be unnecessary. 3 An amendment of a 
 bill as to the description of the property, under well- 
 established rules of procedure only operates from the 
 time of the service of the amended pleading. 4 The bill 
 may be amended on the final hearing in the United States 
 Circuit Court, so as to state that the value of the matter 
 in dispute exceeds five hundred dollars. 5 Speaking upon 
 the subject of amendments, Davis, J., said, in Neale v # 
 Neales : G " To accomplish the object for which a court of 
 equity was created, it has the power to adapt its proceed- 
 ings to the exigency of each particular case, but this 
 power would very often be ineffectual for the purpose, 
 unless it also possessed the additional power, after a cause 
 was heard and a case for relief made out, but not the case 
 disclosed by the bill, to allow an alteration of the plead- 
 ings on terms that the party not in fault would have no 
 reasonable ground to object to. That the court has this 
 power and can, upon hearing the cause, if unable to do 
 
 1 O'Brien v. Fitzgerald, 143 N. Y. 3 First Nat. Bank of Bf. v. Hosmer, 
 377, 38 N. E. Rep. 371. 48 Mich. 200, 12 N. W. Rep. 212. 
 
 2 Hughes v. Northern Pacific R. R. ' Miller v. Sherry, 2 Wall. 250. 
 Co. 1 West Coast Rep. 24. 'Collinson v. Jackson,8 Sawyer.858, 
 
 6 9 Wall. 8.
 
 296 DESCRIPTION. § 157 
 
 complete justice by reason of defective pleadings, permit 
 amendments, both of bills and answers, is sustained by 
 the authorities." x The granting of amendments of 
 pleadings in chancery rests in the sound discretion of the 
 court. 2 
 
 §157. Description — lis pendens. —Aside from interests 
 not liable to execution, the fact that a creditor is com- 
 pelled to file a bill in equity usually implies ignorance on 
 his part of the exact character and form in which the 
 debtor has invested or secreted his property. If such 
 were not the case, process of execution would be invoked. 
 It should not, therefore, be necessary to particularly 
 describe or indicate in the complaint, the assets, whether 
 legal or equitable, which it is proposed to reach by the 
 bill. 3 Thus a bill was entertained which alleged that the 
 defendant " has equitable interests, things in action, and 
 other property which cannot be reached by execution, and 
 that he has also debts due to him from persons 
 unknown." 4 In Miller v. Sherry 5 the original bill was 
 in the form of a creditors' bill. It contained nothing spe- 
 cific except as to certain transactions between the debtor 
 and one Richardson. There was no other part of the 
 bill upon which issue could be taken as to any particular 
 property. The court held that it was effectual for the 
 purpose of creating a general lien upon the assets of the 
 debtor, as a means of discovery, and as the foundation 
 for an injunction and an order that the debtor execute a 
 
 'Citing Mitford's ChaDcery Plead- * Lanmon v. Clark, 4 McLean, 18. 
 
 in--. 326, 331 : Story's Equity Pleading, "The jurisdiction of a court of equity 
 
 3 904, 905 ; Daniel's Chancery Pr. & to reach the property of a debtor 
 
 PI. 463, 466 ; Smith v. Babcock, 3 Sum- justly applicable to the payment of 
 
 tier, 583 : McArtee v. Engart, 13 III. his debts, even when there is no spe- 
 
 242. cific lifii on the property, is un- 
 
 'Gordon v. Reynolds, 111 III. lis, doubted." Public Works v. Colum- 
 
 28 \. E. Rep. 155. bia College. 17 Wall. .130. 
 
 Shainwald v. Lewis, 6 Fed. Rep. 5 2 Wall. 249. 
 766.
 
 § 15/ DESCRIPTK >N. 
 
 conveyance to a receiver. Furthermore, that if it became 
 necessary to litigate as to any specific claim, other than 
 that against Richardson already specified, an amendment 
 to the bill would have been indispensable. The bill did 
 not create a lis pendens^ operating as notice affecting an y 
 real estate. To have that effect the recital in the descrip- 
 tion must be so definite that any one reading it can 
 thereby learn what property is intended to be made the 
 subject of the litigation. 3 Where the complainant in a 
 creditors' bill seeks to obtain satisfaction out of lands 
 inherited or devised, 3 and is unable to specify the lands, 
 he may state that fact in the bill, and call upon the heirs 
 to discover the lands devised or inherited, so that they 
 may be reached by amendment of the bill or otherwise. 1 
 If the description be indefinite, it may be aided by the 
 evidence. 5 
 
 The rule that an alienation of property made during the 
 pendency of an action is subject to the final decree is, as 
 shown by Mr. Bishop, of very ancient origin. Murray 
 v. Ballou " is the leading case in this country. The doc- 
 
 1 As to the application of the doc- 4 Parsons v. Bowne, 7 Paige (N. V.) 
 
 trine of lispendens to creditors' suits, 354. See § 117. 
 
 see Webb v. Read, 3 B. Mod. (Ky.) Williams v. Ewing, 31 Ark. 235. 
 
 119; Jackson v. Andrews, 7 Wend. The circumstance that a deed did ool 
 
 (N. Y.) 152. give an accurate description of the 
 
 '-See Griffith v. Griffith, 9 Paige land intended to be conveyed will nol 
 
 (N. Y.)317. Compare Sharp v. Sharp, defeat asettlement where the descrip- 
 
 3 Wend. (N. Y.) 278; King v. Trice, 3 tion usvd could leave noonein serious 
 
 Ired. (N. C.) Eq. 573; McCauley v. doubt as to the laud intended. Wal- 
 
 Rodes, 7 B. Mon. (Ky.) 4G2 ; Brown v. lace v. Penfield, 106 U. S. 263, 1 S. ( '. 
 
 John V. Farwell Co., 74 Fed. Rep. Rep. 216. 
 
 764. "Bishop on Insolvent Debtors, sup- 
 
 3 Compare Read v. Patterson, 134 plement, § 238a. 
 
 N. Y. 128, 31 N. E. Rep. 445, where ' 1 Johns. Ch. (N. Y.) 566. 
 
 creditors sought to reach property in Tilton \. Cofield, 93 LJ S. L68 ; 
 
 the hands of heirs and the executor's Thompson v. Baker, Ml I'. S. 648, 12 
 
 schedule was held not to be evidence S. C. Rep. 89; Tuttle \ Turnei 
 
 of the debts due by the testator. See Tex. 759, 773; Union Trusl Co. v. 
 
 Adams v. Fassett, 73 Hun (N. Y.) Southern Inland Nav. <S hup. Co., 
 
 430, 26 N. Y. Supp. 447. 130 U. S. 570, 9 S. ( '. Rep. 606.
 
 I 'I S< RIPTION. § 157 
 
 trine is important both as regards the titles of purchasers 
 and the question of preferences among" judgment-cred- 
 itors. In Scouten v. Bender, 1 where an assignment was 
 overturned, it was decided that the creditors were entitled 
 to satisfaction of their judgments, respectively, out of the 
 funds derived from the real estate in the order of priority 
 of the judgments; and out of the personal fund in the 
 order in which the bills were filed and the equitable liens 
 created. The doctrine of lis pendens, it may be further 
 remarked, is said to have no application to corporate 
 stock, 2 or negotiable securities. 3 Mr. Justice Bradley 
 said in County of Warren v. Marcy : i " Whilst the doc- 
 trine of constructive notice arising from lis pcnde?is, 
 though often severe in its application, is, on the whole, a 
 wholesome and necessary one, and founded on principles 
 affecting the authoritative administration of justice, the 
 exception to its application is demanded by other con- 
 siderations equally important, as affecting the free oper- 
 ations of commerce, and that confidence in the instru- 
 ments by which it is carried on, which is so necessary in 
 a business community." 5 In New York, where an action 
 in which a lis pendens was filed has been dismissed and 
 the notice canceled, it ceases to be a statutory notice to 
 dona fide purchasers of the premises described in it. An 
 attempt to discuss the various phases of the law of lis 
 
 '3 Bow. 1'r. (N. Y.) 185. See affi'd 101 N. Y. 656; Davei rt v. 
 
 .' 1 32a. Kelly, 42 N. Y. Hi: 1 . ; Van Alslyne v. 
 
 "Holbrook v. New Jersey Zinc Co., Cook, 25 N. Y. 489; Becker v. Tor- 
 
 57 N. V. GIG. ranee, 31 N. Y. 631; Boynton v. 
 
 'County <»r Warren v. Marcy, 97 Rawson, 1 Clarke (N. Y.) 584; Clafliri 
 
 1 8. '.in. v. Gordon, 39 Hun (N. Y.) 57 ; Shand 
 
 4 97 U. S. 109. v. lianley, 71 N. Y. 324 ; Johnson v. 
 
 For phases of the doctrine of lis Rogers, 15 X. B. R. 1, 13 Fed. Cases, 
 
 pendens, and of the rule as to the 794; Clarke v. kisi, 5 Fed. ('as. 978, 
 
 preference obtain. . I l.y tiling a hill, 3 McLean, (U. S.) 494; cf. Stewart v. 
 
 Leitchv. Wells, 48 X. Y. 585; [sidor, 5 Abb. Pr. N. S. (N. Y.) 68. 
 
 Fitch v. Smith, 10 Paige (N. Y) 9; 'Valentine v. A-ustin, 124 N. Y. 
 
 Albert \. Back, 20 J. & S. (N. Y.) 550, 400, 20 N. E. Rep. 973.
 
 § I57 ;i ' HANGE OB \ ENUE. 
 
 pendens is not possible in this connection. Certainly 
 under the reformed procedure which does not usually 
 require the filing of the pleadings before judgment the 
 old doctrine of lis pendens cannot be said to relate to 
 innocent purchasers of personal property. 1 The excep- 
 tions that have crept into the rule that a party who med- 
 dles with property in controversy does so at his peril 
 have frequently brought the proceedings of diligent 
 creditors to naught. 
 
 § 157a. Change of venue — Territorial jurisdiction. — In 
 New York State a motion to change the place of trial of 
 an action, brought to annul a fraudulent conveyance, to 
 the county in which certain real estate passing under the 
 assignment is situated, cannot be defeated by an offer on 
 the part of the plaintiff to stipulate that he will nol 
 attempt to reach such real estate. 2 When a court of 
 equity attempts to act directly upon real or personal 
 property by its decree the property must be within the 
 territoral jurisdiction of the court. " It is equally well 
 settled that where one is the owner of land or other prop- 
 erty in a foreign jurisdiction, which in equity and good 
 conscience he ought to convey to another, the latter may 
 sue him in equity in any jurisdiction in which he may be 
 found, and compel him to convey the property. The 
 decree in such case directing a conveyance of the prop- 
 erty does not directly affect the title to the property, yet 
 the enforcement of it does result in the complete change 
 of the title. 3 
 
 1 Leitch v. Wells, 48 N. Y. G09 ; 502. Compare Acker v. Leland, 96 
 Holbrook v. New Jersey Zinc Co., 57 N. Y. 384. 
 
 N. Y. 610; Zoeller v. Riley, 100 N. Y. 8 Johnson v. Gibson, 116 III. 294, 6 
 
 102, 2 N. E. Rep. 388. N. E. Rep. 205. 
 
 2 Wyatt v. Brooks, 42 Hun (N. Y.)
 
 CHAPTER X. 
 
 OF THE PLEA OR ANSWER 
 
 sj L58. Answer and burden of proof. 
 General denial. 
 
 159. Avoiding denial. 
 
 160. Answer as evidence for or 
 
 against co-defendant. 
 
 161. Pleading to the discovery and 
 
 the relief. 
 
 162. Particularity of denial in 
 
 answer. 
 162a. Bill of particulars. 
 
 163. Denying fraud or notice. 
 
 164. Admission and avoidance. 
 163. Avoiding discovery. 
 
 166. Affirmative relief. 
 
 167. Waiver of verification. 
 
 § 158. Answer and burden of proof. General denial. — 
 Usually, as we have seen, in creditors' actions to reach 
 assets, or bills in equity to annul fraudulent alienations, 
 the debtor and the fraudulent alienees are made parties 
 defendant. The latter are necessary parties to the end 
 that the judgment may conclude them, and the court 
 obtain jurisdiction over and possession of the property or 
 assets in their hands, and annul the colorable transaction. 
 It is manifest that the defendant alienee has rights in the 
 suit different from and sometimes superior to those of the 
 debtor. The latter is naturally concluded by the judg- 
 ment upon which the bill should proceed, and can with- 
 hold from his creditor nothing but exempt property or 
 certain trust income originating from third parties. 1 
 The alienee, on the other hand, may claim to be a 
 bona fide purchaser, having a complete title, or may 
 show the absence of actual fraud, and thus be allowed to 
 hold the property as security for the amount of actual 
 advances. The grantor may " intend a fraud, but if the 
 grantee is a fair, bona fide, and innocent purchaser, his 
 
 See Chap. XXIII.
 
 g 1 5S ANSWER \\l> BURDEN OF PROOF. $01 
 
 title, is not to be affected by the fraud of his grantor." ' 
 It follows that the alienee cannot be prejudiced by the 
 fact that judgment /r<? confesso passes against tin- debtor, 2 
 or that fraud is admitted or alleged in the debtor's 
 answer. 3 The defense that a party is a bona fide pur- 
 chaser is an affirmative defense only in cases where fraud 
 in some previous holder of the title has been shown, 1 and 
 ordinarily a sworn answer responsive to a direct inter- 
 rogatory or specific charge of fraud must be accepted as 
 true until disproved. 5 Fraud, as we have already seen, 6 
 is not a thing to be presumed, but must be proved and 
 established by evidence sufficient for that purpose,' 
 although, as already made manifest, 8 it is sometimes prac- 
 tically a legal deduction from uncontroverted facts, or 
 from evidence the weight of which is practically 
 conclusive. 9 Distinct and even inconsistent grounds of 
 defense may be set up. 10 
 
 Where a defendant's title is attacked on the oround of 
 fraud he may, under a general denial, introduce any proof 
 showing that his title is not fraudulent. 11 In recent 
 Colorado cases it is held that if a party desires to subject 
 property held by a vendee under apparently valid indicia 
 of ownership. to the payment of a debt of his vendor, the 
 attacking party must plead and prove the facts that vitiate 
 such title, whether they constitute fraud or estoppel. 1 '- 
 
 1 Sands v. Hildreth, 14 Johns. (N. " Grover v. Grover, 3 Mil. Ch. 35. 
 
 Y.) 498, per Spencer, J.: Hollister v. s See g§ 9, 10. 
 
 Loud, 2 Mich. 310 ; Kittering v. Par- 9 See £ 10. 
 
 ker, 8 Ind. 44 ; Loeschigk v. Bridge, !0 Goodwin v. Wertheimer, 99 N. 
 
 42 N. Y. 423. See Chap. XXIV. Y. Mil, 1 N. E. Rep. 404; Societa 
 
 * Thames v. Rembert, 63 Ala. 501. Italiana v. Sulzer, 138 N. Y. 172, 34 
 See Dick v. Hamilton, 1 Deady, 322 : N. E. Rep. 193. 
 
 Fulton v. Woodman, 54 Miss. 158-173. "Kay v. Teabout, 65 [owa, 157: 
 
 3 See Scheitlin v. Stone, 43 Barb. Sec £141. 
 
 (N. Y.) 637. ls Tucker v. Parks, i Col 62; !><■ 
 
 * Fulton v. Woodman, 54 Miss. 172. Votie v. McGerr, 15 Col. 161 Seel< 
 '- Fulton v. Woodman, 54 .Miss. 159 ; man \. Boagland, 19 Col. 231, 34 Pac 
 
 Hartshorn v. Fames, 31 Me. 98. Rep. 996. 
 
 6 See § 6.
 
 302 AVOIDING DENIAL. §159 
 
 The lack of allegations of knowledge or notice of the 
 fraudulent design, or complicity therewith, or participation 
 therein on the part of the purchaser, will be sufficient to 
 exclude evidence of such knowledge or conduct. 
 
 § 159. Avoiding denial. — The general rule prevails, under 
 equity procedure, that an answer under oath, so far as it 
 is responsive, is to be taken as true unless overcome by 
 competent proof. 1 When the defendant, by his answer 
 under oath, has expressly negatived the allegations of the 
 bill, and the testimony of only one person has affirmed 
 what has been negatived, the court will not decree in 
 favor of the complainant." There is, then, oath against 
 oath. 8 The complainant generally calls upon the defend- 
 ant to answer on oath, and is therefore bound to admit 
 the answer, so far as he has called for it, to he. prima facie 
 true, and as much worthy of credit as the testimony of 
 any witness. This rule does not extend, however, to 
 averments embodied in the answer not directly responsive 
 to the allegations contained in the bill, since the com- 
 plainant has not called for such averments. 4 Allegations 
 not responsive to the bill, if denied by a general repli- 
 cation, must be proved before becoming available to the 
 party making them. 5 In Green v. Tanner, 6 the court 
 said : " That the answer, being responsive to the bill, is 
 evidence for the defendant as to facts within their own 
 knowledge, is not denied. And by a well-established rule 
 of equity, the answer must be taken to be true, unless 
 contradicted by two witnesses, or by one witness with 
 
 1 Wright v. Wheeler, 11 Iowa, 13: S. C. Rep. 534, the court says : "An 
 
 Allen v. Mower, 17 Vt. 61 ; Parkhurst answer under oath is evidence in 
 
 v. McGraw. 24 }!iss. 184. favor of the defendant, because made 
 
 1 Birmingham Nat. Bank v. Steele, in obedience to the demand of the 
 
 98 Ala. 85, 12 So. Rep. i^ ; Beene v. Kill for a discovery, and therefore 
 
 Randall, 23 Ala. 514. only so far as it is responsive t<, the 
 
 Jacks s. Nichols, ■""> X. Y. 178. bill." 
 
 'Sen/ v. Mitchell, 94 I', s, 582. ■ Humes v. Scruggs, 94 U. S. 24. 
 
 In I arley v. Kittson, 120 U. S. 317, 7 6 8 Mete. (Mass.) 122.
 
 § 159 AVOIDING DENIAL 
 
 303 
 
 probable and corroborating- circumstances." 1 A plea 
 which avoids the discovery prayed for is no evidence in 
 the defendant's favor, though under oath and negativing 
 material allegations of the bill. 2 In Bowden v. Johnson, 
 it was contended by counsel that, as the bill prayed that 
 the defendant should answer its allegations on oath, the 
 answer was evidence in his favor, and was to be taken as 
 true unless it was overcome by the testimony of one wit- 
 ness, and by corroborating circumstances equivalent to the 
 testimony of another witness. The court found facts 
 "sufficient to satisfy the rule of equity," and cite from 
 Greenleaf, 4 to the effect 'that the sufficient evidence to 
 outweigh the force of an answer may consist of one wit- 
 ness, with additional and corroborative circumstances, 
 which circumstances may sometimes be found in the 
 answer itself ; or it may consist of circumstances alone, 
 which, in the absence of a positive witness, may be suffi- 
 cient to outweigh the answer even of a defendant who 
 answers on his own knowledge." 5 It seems that the 
 credibility of the defendants' answers setting forth con- 
 sideration, will be destroyed by proof that the vendee 
 permitted the vendor to assert in his hearing, without 
 contradicting him, that no indebtedness existed. 
 
 1 Flagg v. Mann, 2 Sumner, 487. the circumstances, must be taken as 
 
 See Tompkins v. Nichols, 53 Aia. 198 ; true. Tobey v. Leonards, 2 Wall. 
 
 Parkman v. Welsh, 19 Pick. (Mass.) 430; Seitz v. Mitchell, 94 O. S. 582 ; 
 
 234 ; Hoboken Bank v. Beckman, 33 Voorbees v. Bonesteel, 16 Wall. 30 ; 
 
 N. J. Eq. 55 ; Morse v. Hill, 136 Mass. Collins v. Thompson, 22 I [ow, 253." 
 
 71. In Hill v. Ryan Grocery Co., 78 ' Farley v. Kittson, 120 U. s. :UT, 
 
 Fed. Rep. 25, the court says : " With 7 S. C. Rep. 534 ; Eeartl v. ( iorning, 
 
 only one witness, therefore, whose 3 Paige (N. Y. ) 566. 
 
 testimony was scarcely material, sup- :i 107 U. S. 262, 2 s. < '. Rep. '.' 16. 
 
 plemented by the written instruments, 4 Greenleaf on Evidence, vol.8, £ 
 
 which upon their face negative the 289. 
 
 case made by the bill, the complain- 6 s. P. Williamson v. Williams, 11 
 
 ants were without proofs to outweigh Lea (Tenn.) 365. 
 
 or impair the force of the positive 6 Bradley v. Buford, Sneed (Ky .) 12. 
 denials of the answers, which, under
 
 304 DISCOVERY \\l> RELIEF. §§ 1 60, 161 
 
 § 160. Answer as evidence for or against co defendant. — 
 The equity practice seems to be settled that, generally 
 speaking, the answer of one defendant cannot be used 
 against another defendant. 1 In Salmon v. Smith, 2 the 
 rule is recognized that the answer of one defendant to a 
 bill in chancery which shows that the complainant is not 
 entitled to the relief sought inures in favor of his 
 co-defendant as evidence:' So it is said by Mr. Green- 
 leaf, 1 "that where the answer in question is unfavorable 
 to the plaintiff, and is responsive to the bill, by furnishing 
 a disclosure of the facts required, it may be read as evi- 
 dence in favor of a co-defendant, especially where the 
 latter defends under the title of the former." 5 Where 
 the complainants choose to rely upon admissions or con- 
 fessions in an answer, the denials and admissions must, 
 of course, be considered as a whole. 6 A sworn answer 
 should be taken as true unless overcome by the testi- 
 mony,' but the denials to make an answer evidence must 
 be of facts stated in the bill. 8 It may be here recalled 
 that the testimony of a single witness, uncorroborated by 
 circumstances, has been considered not sufficient to over- 
 come a verified answer positively denying fraud. 9 
 
 ?i 161. Pleading to the discovery and the relief. — Chan- 
 cellor Walworth stated in Brownell v. Curtis, 10 that, in 
 
 Salmon v. Smith, 58 Miss. 408; 261. But see Camion v. Norton, 14 
 
 Powles v. Dilley, 9 Gill. (Md.) 222; Vt. 178. 
 
 McKim v. Thompson, 1 Bland (Md.) 6 Crawford v. Kirksey, 50 Ala. 597. 
 
 161. 'Hurd v. Ascherman, 117 111. 501, 
 
 58Miss. 100,408; BanoverNat. Bk. 6N. E. Rep. 160. See United Stafcesv. 
 
 v. Kl.in, (M .Miss. 151, s So. Rep. 208. Budd, 111 I'. S. Hi.-,, v: s. ( '. Rep. 575. 
 
 liavis v. Clayton, 5 Humph. 3 Gainerv. Russ, 20 Fla. 162. 
 
 (Tenn.) 1 16 » See Garrow v. Davis, 15 How. 
 
 l 3Greenl. Ev. g 283. 272; Evans v. Bicknell, 6 Ves. 184; 
 
 Mills \. Gore, 20 Pick. (Mass.) Lord Cranstown \. Johnston, 3 Ves. 
 
 Miles v. Miles, 32 X II. 147; 170; Pilling v. A.rmitage, 12 Ves. 
 
 Powles \ Dilley, '.» Gill. (Md.) 222; r8 ; Thompson v. Sanders, <! .J. .1. 
 
 Field v. Holland, 6 Cranch 8 ; Clason Marsh (Ky.) 93. Compare Allen v. 
 
 \. Morris, 10 Johns. (N. Y.) 524; Cole, 9 N. J. Eq. 286. 
 
 Linganv. Henderson, i Bland (Md.) 10 10 Paige (N. X".) 214.
 
 § 162 DENIAL IN ANSWER. 
 
 certain cases, where the discover)' asked for would tend 
 to criminate the defendant, or subject him to a penalty or 
 forfeiture, or entail a breach of confidence, the defendant 
 was not bound to make a discovery to aid in establishing 
 the facts, 1 although the complainant might be entitled to 
 relief. In the course of the opinion it was further said : 
 "But where the same principle upon which the demurrer 
 to the discovery of the truth of certain charges in the 
 complainant's bill is attempted to be sustained, is equally 
 applicable as a defense to the relief sought by the bill, 
 the settled rule of the court is that the defendant cannot 
 be permitted to demur as to the discovery only, and 
 answer as to the relief. 2 This general rule is equally 
 applicable to the case of a plea ; and the defendant can- 
 not plead any matters in bar of the discovery merely, 
 when the matters thus pleaded would be equally valid as 
 a defense to the relief." 
 
 §162. Particularity of denial in answer. — Chancellor 
 Kent, in Woods v. Morrell, 3 in discussing the sufficiency 
 of an answer to the allegations of a bill in equity, said : 
 " The general rule is, that to so much of the bill as is 
 material and necessary for the defendant to answer, he 
 must speak directly, without evasion, and not by way of 
 negative pregnant. Fie must not answer the charges 
 merely literally, but he must confess or traverse the sub- 
 stance of each charge positively, and with certainty ; and 
 particular precise charges must be answered particularly 
 and precisely, and not in a general manner, even though 
 a general answer may amount to a full denial of the 
 charges." i This rule is well illustrated in Welcker v. 
 
 •Citing Atty.-Gen. v. Brown, 1 129; Story's Eq. Pleadings, 254 n. 1 ; 
 
 Swanst. 294 ; Dummer v. Corporation Welf. Eq. Pleadings 133. 
 
 of Chippenham, 14 Ves. 245 ; Hare on :; 1 Johns. ( '!.. | X Y. 1 
 
 Discovery, 5. See § 165. 'See Eunter v. Bradford, 3 Fla. 
 
 2 Citing Morgan v. Harris, 2 Bro. C. 285 : Barrow v. Bailey, 5 Fla. 23. 
 C. 124: Waring v. Mackreth, Forresl 
 20
 
 3o6 BILL OF PARTICULARS. § 162a 
 
 Price, 1 where the bill charged that the land conveyed by 
 the debtor to his wife was " all the property of which the 
 said John F. was possessed." The answer set forth that 
 the debtor ''was then in good circumstances, with means 
 enough and more than enough to pay all his debts." 
 This latter statement was characterized as a mere legal 
 conclusion which a party was not permitted to draw for 
 himself, or to express an opinion concerning, without dis- 
 closing facts to justify it, and as being a mere evasion of 
 the real issue as to the possession of other property. 
 
 It is a familiar rule that a positive denial of fraud in an 
 answer will not prevail against admissions, in the same 
 pleading, of facts which show that the transaction was 
 fraudulent ; 2 also, that in weighing the whole evidence in 
 the case, the fact that the defendant answers only gener- 
 ally, denying the fraud, will operate against him whenever 
 the bill charges him with particular acts of fraud. 3 
 A charge in a bill that the deed in question was never prop- 
 erly delivered, and that the grantor retained possession 
 after the conveyance, should, if untrue, be specifically 
 denied. 4 
 
 § 162a. Bill of particulars, — The granting of an order 
 for a bill of particulars in an action rests largely in the 
 sound discretion of the court. In actions ex delicto a bill 
 of particulars is only allowed by grace. 5 Such orders 
 have been granted in almost every form of action. In a 
 Special Term case in New York, prosecuted to set aside 
 an assignment as having been made in fraud of creditors, 
 
 1 2 Lea (Term.) 667. « Hudgine v. Kemp, 20 Eow. 52. 
 
 Robinson v. Stewart, 10 X. Y. 5 Harding v. Bunnell, 14 Pa. Co. Ct. 
 
 194 ; Jackson v. Hart, 11 Wend. (N. Rep. 417. 
 
 y.) 349, per Savage, Ch. J. See IH>- 'See Dwight v. Germania Life Ins. 
 
 boken Bank v. Beckman, 33 X. J. Eq. Co., 84 X. V. 493; Tilton v. Beecher, 
 
 53; Sayre v. Fredericks, Hi X. .]. 59 X. Y. 176 ; Byrnes v. Lewis, 88 
 
 Eq. 205. II X. Y.i, 310, 31 N. Y. Supp. 
 
 •Parkman v. Welch, 19 Pick. 1028 ; Townsend v. Williams, 117 N. 
 
 Ma J34. C. 336, 23 S. E. Rep. nil.
 
 § 1 62a 
 
 MIL l. < »F PARTICULARS. 
 
 
 Lawrence, J., ordered the plaintiff to furnish certain pre- 
 ferred creditors with a bill of particulars of the times, 
 places, acts, and things which it was intended to prove, 
 as showing the fraudulent intent. 1 A similar application 
 was denied in a later case upon slightly dissimilar facts. 3 
 It would be destructive to creditors' proceedings in many 
 cases to allow a debtor to exact in advance a bill of par- 
 ticulars of the specific acts of fraud relied upon to support 
 the action. Fraud is generally established by developing 
 a series of minute circumstances, earmarks, and indicia. 
 These sometimes appear at the trial for the first time 
 when the creditor has obtained an opportunity to explore 
 the enemy's country by cross-examination it may be. As 
 the presumption of good faith in all transactions rests 
 with the defendant, and the general character of the 
 plaintiff's cause of action must be outlined in the plead- 
 ing, it would seem to be most unjust to require, in addi- 
 tion, a statement of the items of the creditors' evidence 
 in advance of the trial. Creditors are considered to be 
 
 1 Claflin v. Smith, 13 Abb. N. C. 
 (N. Y.) 205. See Byrnes v. Lewis, 83 
 Hun (N. Y.), 310, 31 N. Y. Supp. 
 1028 ; Gilhooly v. American Surety 
 Co.. 87 Hun (N. Y.) 395, 34 N. Y. 
 Supp. 347. 
 
 2 Passavant v. Cantor, 21 Abb N. 
 C (N. Y.) 259, 1 N. Y. Supp. 574, 
 48 Hun (N. Y.) 546; Faxon v. Ball, 50 
 N. Y. St. Reporter, 495, 21 N. Y. Supp. 
 737. Compare Isaac v. Wilisch, 69 
 Hun (N. Y.) 341, 23 N. Y. Supp. 589 ; 
 Constable v. Hardenbergh, 76 Hun 
 (N. Y.), 436, 27 N. Y. Supp. 1023; 
 Passavant v. Sickle, 14 Civ. Pro. (N. 
 Y.) 57 ; Riggs v. Buckley, 2 App. Div. 
 (N. Y.) 618, 37 N. Y. Supp. 1095. In 
 Gilhooly v. American Surety Co., 87 
 Hun (N. Y.), 397, an assignee sued for 
 personal property. The answer de- 
 nied that the assignor had assigned 
 all his property, and alleged that the 
 
 assignment was fraudulent. The 
 court said : " We think the defendant 
 should state whether it claims the 
 assignment to be void on accounl oi 
 fraudulent preferences, in which case 
 
 it Should State What preferences are 
 
 claimed to be fraudulenl ; or, if the 
 alleged fraud consists in the failure 
 of the assignor to transfer all his as- 
 sets to the plaintiff, in that event the 
 defend an! should particularize what 
 property, if any, il expects or intends 
 to prove on the trial was withheld i'.\ 
 
 the assignor from the assigi and, 
 
 if on both -rounds, then all the par- 
 ticulars above specified should be 
 given." In Harding v. Bunnell, 11 
 Pa. Co. Ct. Rep. 419, the courl says : 
 ■ We think the plaintiff Bhould state 
 what property was fraudulently in- 
 cumbered and in whal waj ."
 
 308 DENYING FRAUD — ADMISSION AND AVOIDANCE. §§163,164 
 
 a favored class, and are entitled, with proper restrictions, 
 to " fish " through the debtor's transactions in pursuit of 
 hidden assets, and should not be fettered by any restrict- 
 ing orders. An application for a bill of particulars is 
 addressed to the sound discretion of the court, and, of 
 course, will be denied where the moving party may fairly 
 be presumed to possess the information. 1 
 
 § 163. Denying fraud or notice. — In order to entitle a 
 party to protection as a purchaser without notice he must 
 deny notice of the fraud fully and particularly, whether the 
 defense be set up by plea or answer, 2 and even though 
 notice is not charged in the bill. 3 A plea of bona fide pur- 
 chaser for value and without notice must be as full under 
 the Code as under the former system of equity pleading. 4 
 We may here observe that constructive fraud is not 
 regarded as a fact, but is treated rather as a conclusion of 
 law drawn from ascertained facts. Hence, as has been 
 shown, 5 where an answer denies the fraud, but neverthe- 
 less admits facts from which the existence of fraud follows, 
 as a natural and legal if not a necessary and unavoidable 
 conclusion, the denial will not avail to disprove it. 6 
 
 £ 164. Admission and avoidance. — It is an established 
 rule of evidence in equity that, where an answer filed in 
 a cause admits a fact, and insists upon a distinct fact by 
 way of avoidance, the fact admitted is established, but the 
 fact insisted upon must be proved; otherwise the admis- 
 sion stands as if the fact in avoidance had not been 
 averred. 7 
 
 : Kink v. Jetter.38 Bun(N. Y.iir,:;. 1 Weber v. Rothchild, 15 Ore. 388. 
 
 itanton v. Green, 34 Miss. 592; B See § 162. 
 
 Gallatin v. Cunningham, 8 < low. (N. Sayre v. Fredericks, 16 N. J. Eq. 
 
 J Lea. Cas in Eq. pp. 85, 86 ; 209; Cunningham v. Freeborn, 11 
 
 Miller v. Fraley.21 Ark. 22. Compare Wend. (N. V.) 253. 
 
 Friedenwald v. Mullan, in Beisk. * Clements v. M -e, 6 Wall. 315 : 
 
 Tenn | . Presley's Evidence, |>. K5 ; Han v. 
 
 'Manhattan Co. v. Evertson, (i Ten Eyck, 2 Johns. Ch. (N. Y.) 62 ; 
 
 Paige (N. Y.) 466. Clarke v. While, 12 Pet. 190. See
 
 §§ 165, l66 AVOIDING l)lM'n\ ERV — AFFIRMATIV] RELIEF. 
 
 §165. Avoiding discovery. — An important question is 
 frequently presented as to whether or not a defendant can 
 defeat a discovery by pleading that the disclosure may 
 subject him to a criminal prosecution. Such a plea lias 
 been held not sufficient to excuse a discovery, 1 while in 
 many cases it is regarded as sufficient to excuse the party 
 from answering." This same question comes up in vari- 
 ous forms in civil procedure, and at least in the United 
 States, the general rule and practice is that a party may 
 omit to verify a pleading, or decline to make a disclosure 
 which will tend to degrade or criminate him. 
 
 § 166. Affirmative relief. — No affirmative relief can ordi- 
 narily be accorded to the defendant unless it is claimed 
 by cross petition, or as an affirmative defense ; yet where 
 such relief has been granted without objection in the 
 court below, the decree will not always, for that reason, 
 be reversed on appeal. 3 It may be here observed that 
 jnder the practice in Alabama the fact that the debtor has 
 other property which might be subjected to the payment 
 of the judgment, is not available to a voluntary alienee 
 unless presented by cross bill. 4 The homestead may 1"' 
 protected by cross bill. 5 As elsewhere shown, the vendee, 
 when deprived of the property, may obtain reimburse- 
 ment for the amount actually advanced if no intentional 
 wron£ is shown. It is intimated in McLean v. Letch- 
 ford/'' that the court would not consider his claim to 
 
 Ringgold v. Ringgold, 1 H. & G. » Kellogg v. Aherin, 4S Iowa. 299. 
 
 (Md.) 11, 18 Amer. Dec. 250. 4 Leonard v. Forcheimer, 49 Ala. 
 
 1 Devoll v. Brownell, 5 Pick. (Mass.) 145. 
 
 448; Bunn v. Bunn, 3 New Rep. 679. 5 Thomason v. Neeley, 50 Miss. 313. 
 
 See Wich v. Parker, 22 Beav. 59. Where a homestead exemption ia 
 
 Compare Reg. v. Smith, 6 Cox C. C. relied on, it must be specifically 
 
 31. See g 161. pleaded. Graham v. Culver, 3 Wyo. 
 
 2 Michael v. Gay, 1 Fost. & Fin. 409; 639, 29 Par. Rep. 270 ; 30 W 
 Bay State Iron Co. v. Goodall, 39 N. 6 60 Miss. 182. 
 
 H. 237 ; Horstman v. Kaufman, 97 
 Pa. St. 147.
 
 3IO WAIVER OF VERIFICATION. § l6 7 
 
 reimbursement in the absence of a cross bill, though it is 
 conceded that reimbursement has been made, in a proper 
 case, where no cross bill had been filed. 1 
 
 § 167. Waiver of verification. — The pleadings in the class 
 of litigation under discussion are usually verified. Where 
 code practice prevails, if a verified bill of complaint is 
 filed, all subsequent pleadings must be under oath except 
 demurrers, which, of course, only raise questions of law. 
 Though the complainant waive an answer under oath 
 from the defendant, yet the latter may nevertheless verify 
 the pleading. So held in Clements v. Moore. 2 Swayne, 
 J., said : " It was her right so to answer, and the complain- 
 ants could not deprive her of it. Such is the settled rule 
 of equity practice, where there is no regulation to the 
 contrary." It is said that the practice of waiving an 
 answer under oath originated in the State of New York, 
 by virtue of a provision incorporated in the statute, 3 at 
 the suesfestion of Chancellor Walworth, and was intended 
 to introduce a new principle into the system of equity 
 pleading. It was designed to leave it optional with the 
 complainant to compel a discovery in aid of the suit, or 
 to waive the oath of the defendant if the complainant was 
 unwilling to rely upon his honesty, and chose to estab- 
 lish his claim by other evidence. 4 
 
 ■Compare Dunn v. Chambers, 4 ant, though under oath, except such 
 
 Hark (X. Y.)381 ; Grant v. Lloyd, 20 part thereof as shall be directly respon- 
 
 Miss. L92 ; Alley v. Connell, 3 Head sive to such interrogatories, shall not 
 
 (Tenn.) 578. See?; 51. be evidence in his favor, unless the 
 
 ■ 1; Wall. 314. The 41st Rule in cause be set down for hearing on bill 
 
 Equitj of the Supreme Court now and answer only," etc. 
 
 provides : " [f the complainant in ■' N. Y. R. S., p. 175, § 44. 
 
 his bill shall waive an answer under 4 See Armstrong v. Scott, 3 Greene 
 
 oath, or shall only require an answer (la.) 433; Burras v. Looker, 4 Paige 
 
 with regard to certain specified inter- (N. Y. ~22~. 
 rogatories, the answer of the defend-
 
 CHAPTER XI. 
 
 OF THE JUDGMENT OR DECREE. 
 
 § 168. The judgment conclusive. 
 1G9. Judgment res adjudicat a though 
 the form of procedure be 
 changed. 
 
 170. Judgment appointing receiver. 
 170a. Enforcing judgment at law. 
 
 171. Judgment avoids sale only as to 
 
 creditor — not absolutely. 
 
 172. Judgment transferring title. 
 
 173. No judgment in favor of unrep- 
 
 resented parties. 
 173a. Creditor suing in place of as- 
 signee. 
 
 174. Confession of judgment. 
 
 ^ 175. Impounding proceeds of a fraud- 
 ulent sale. 
 170. Accounting by fraudulenl ven- 
 dee to debtor or creditor. 
 
 177. ) Personal judgment againsl 
 
 178. j fraudulenl vendee. 
 
 IT'.i. Monej judgment, when <li^al 
 
 lowed. 
 ISO. Personal judgment against wife. 
 
 181. Judgment must conform to re- 
 
 lief demanded. 
 
 182. Must accord with complaint. 
 
 183. Contradictory verdicts.. 
 183a. New trial. 
 
 § 168. The judgment conclusive.— The form of the judg- 
 ment or decree in suits to annul fraudulent transfers, or to 
 reach equitable assets, and the rights secured by the adju- 
 dication, constitute important branches of our subject 
 from a practical standpoint. The usual attributes attach 
 to the judgment in this class of cases. The recovery of 
 a judgment is regarded as an estoppel upon the parties 
 as to the subject-matter investigated. 1 But the estoppel 
 has no wider effect. Raymond v. Richmond- is an illus- 
 tration of our meaning. There the action was instituted 
 by an assignee against a sheriff and an execution cred- 
 itor, for levying upon property which had theretofore 
 been adjudged to belong to the assignee, in an action to 
 
 ■See In re Hussman, 2 N. B. R. * 78 N. V. 351 ; second appeal, 88 
 
 441; Downer v. Rowell, 25 Vt. 336; N. Y. 671 ; Brooks v. Wilson, 125 N. 
 
 Raymond v. Richmond, 78 N. Y. 351 : V. 256, 26 X. E. Rep. 258 , Eumes v. 
 
 Bell v. Merrifield, 109 N. Y. 211, 10 Scruggs, 94 U. S. 22. 
 N. E. Rep. 55 ; Hymes v. Estey, 116 
 N. Y. 509, 22 N. E. Rep. 1087.
 
 312 JUDGMENT RES ADJUDICATA. § ^9 
 
 which the assignee, the assignor and the execution 
 defendant were parties. The court very properly held 
 that, as the creditor under whose judgment and execution 
 the seizure had been effected, was not a party to the prior 
 litigation, the adjudication did not conclude him. Hence 
 such creditor was entitled to show that the transfer made 
 by the execution defendant, although the title had been 
 adjudged to be in the assignee, was fraudulent in fact, 
 and the seizure of the property by the creditor therefore 
 justifiable. Manifestly a purchaser of a chattel mort- 
 gage is not concluded by a subsequent adjudication in an 
 action against the mortgagor and mortgagee to which he 
 was not a party, declaring the mortgage to be fraudu- 
 lent. 1 And a decree between husband and wife, estab- 
 lishing in the wife's favor a resulting trust in the 
 husband's lands, is not conclusive upon the husband's 
 existing creditors. 2 Nor is a judgment obtained on an 
 attachment even prima facie evidence against a person 
 who claims to be a bona fide purchaser for value of the 
 property attached. 3 
 
 Where fraud is essential to a cause of action it must be 
 found as stated. 4 
 
 If a court of equity has jurisdiction and entertains the 
 case it will ordinarily retain the case till the whole subject 
 is disposed of. 5 
 
 § 169. Judgment res adjudicata though the form of pro- 
 cedure be changed. —Where creditors seek by bill in equity 
 to subject a vested estate in remainder to their claims, 
 
 'Zoeller v. Riley, 100 N. Y. 102, 2 4 Brunei- v. Brown, 139 Intl. 610,38 
 
 N . E. Rep- 388. N. E. Rep. 318 ; Fletcher v. Martin, 
 
 -Old Folks' Society v. Millard, 86 126 Ind. 55, 25 N. E. Rep. 886. 
 Tenn. 657 ; Humes v. Scruggs, 94 U. 5 Ostranderv. Weber, 114 N. Y. 102, 
 S. 22; Branch Bank of Montgomery 21 N. E. Rep. 112; Taylor v. Taylor, 
 v.Hodges, 12 Ala. 118. 43 N. Y. 578, 584; Ludlow v. Si- 
 nn \. Smith, 68 .Miss, 773, 10 So. mond, 2 Cai. Cas. (N. ST.) 55. 
 Rep. 70. See also Goodwin v. Snyder, 
 75 Wis. 450, II X. W. Rep. 746.
 
 § I/O JUDGMENT APPOINTING REi l [VER. 
 
 and the courts decide against them, the question will be 
 res adjudicata if the creditors afterward try to levy by 
 execution on the same interest, when it has become an 
 estate in possession by the death of the life tenant. 1 
 
 § 170. Judgment appointing receiver. — The particular 
 form of a decree in a creditor's action to cancel a fraudu- 
 lent conveyance is, in some instances, of vital importance 
 to the complainant. A court of equity undoubtedly pos- 
 sesses the power to pronounce a judgment annulling and 
 clearing away the fraudulent obstruction, and then, 1>\ 
 acting upon the person of the debtor, to compel him to 
 convey the title to a receiver. 5- ' It is considered irregular 
 to appoint a referee in the judgment ; there should be a 
 receiver and a direction that the defendant convey to 
 him. 3 The practitioner should be cautious about enter- 
 ing up judgment, as the title which the receiver or a 
 purchaser from him acquires rests upon the debtor's own 
 conveyance, and has no relation to the original judg- 
 ment which is the foundation of the bill in equity. It has 
 been intimated that when the creditor pursues this course 
 he abandons the lien of his judgment and seeks satisfac- 
 tion of his debt out of the debtor's property generally. 
 In Chautauque County Bank v. Risley, 1 the creditor's 
 
 1 Nichols v. Levy, 5 Wall. 438. 1030, the court said : "On a hill filed 
 
 ■ Chautauque County Bank v. Ris- to reach real property fraudulently 
 
 ley, 19 N. Y. 374 ; Cole v. Tyler, 65N. transferred by the debtor, the claims 
 
 Y. 77. Compare McLean v. Cary, 8S of several creditors are satisfied in the 
 
 N. Y. 391 ; White's Bank of Buffalo order of the priority of the judg- 
 
 v. Farthing, 9 Civ. Pro. (N. Y.) 66, ment." In Wilkinson v. Paddoci 
 
 101 N. Y. 344, 4 N. E. Rep. 734; Hun (X. Y.) 197, affi'd, 125 N. V. 748, 
 
 New York Life Ins. Co. v. Mayer, 19 the court says : " The doctrine of the 
 
 Abb. N. C. (N. Y.) 92; Union Nat. authorities seems to be t" tl"- effect 
 
 Bk. v. Warner, 12 Hun (N. Y.) that, as to real estate, judgment- 
 
 306. creditors acquire liens thereon in the 
 
 3 Union Nat. Bk. v. Warner, 12 order in which their judgments 
 Hun (N. Y.) 306. docketed, and that their priori! 
 
 4 19 N. Y. 374. In Brown v. not affected by -^uits brought to sel 
 Chubb, 135 N. Y. 180, 31 N. E. Rep. aside a fraudulent transfer of such
 
 514 ENFORCING JUDGMENT AT LAW. § I/Oa 
 
 action was founded upon the first judgment recovered 
 against the debtor, and the property was, under the order 
 of the court, conveyed by the debtor to a receiver. It 
 was decided that another creditor, whose judgment was 
 subsequent to that which was the foundation of the 
 creditor's bill, but which was entered prior to the time the 
 bill was filed, might sell the real estate on execution, and 
 the purchaser at such sale would acquire a better title 
 than the grantee from the receiver. The creditor should 
 therefore be careful not to sacrifice the advantage which 
 the prior judgment gives him, and, having cleared the 
 fraudulent conveyance out of the way, should, especially 
 if subsequent judgments have been entered, proceed by 
 execution and sale on his first judgment. 1 In Cole v. 
 Tyler, 2 the judgment set aside the conveyance and merely 
 directed that the receiver should sell, execute deeds, etc. 
 It is not easy to discover the theory upon which the 
 receiver could be said to have acquired the title. The 
 improper form of the judgment was assigned as a ground 
 for its reversal, but the court said that if the direction to 
 sell, etc., was erroneous, the error would not be rectified 
 by an appeal, but the correct procedure was by motion to 
 correct the judgment, the matter being one merely of 
 detail, and not affecting the decision upon its merits. 
 
 § 170a. Enforcing judgment at law. — The position was 
 urged by counsel in Smith v. Reid, 3 that, though the 
 creditor's judgment and execution were regular, yet the 
 real estate in controversy could not be sold until the 
 
 real estate. (White's Hank v. Farth- Rep. 734; Sband v. Eanley, 71 N. Y. 
 
 Lng, 101 N. Y. 346,347 ; Underwood v. 319; Union Nat. Bank v. Warner, 12 
 
 Sutcliffe, 77 N. Y. 62 ; N. Y. Life Ins. Hun (N. Y.) 309; Cole v. Tyler, Go N. 
 
 Co x. Mayer, 19 AM.. N.C.(N. 5T.)92 ; Y. 73. 
 
 s. c. L2 N. Y. Stat.- Rep. 119 ; O'Brien * G5 N. Y. 77. 
 
 v Browning, 49 How. Pr.(N.Y.)113)." 3 134 N. Y. 568, 577, 31 N. E. Rep. 
 
 1 Compare White's Bank of Buffalo 1082. 
 v. Farthing, 10] N. Y. 344, 4 N. E.
 
 § i7i 
 
 JUDGMENT AVOIDS SALE. 
 
 15 
 
 alleged conveyance of it had been set aside 1»\ a valid 
 judgment decreeing such conveyance to be fraudulent. 
 Brown, J., said: "A judgment-creditor cannot be 
 deprived of his legal right to enforce collection of his 
 judgment against the lands of his debtor by a fraudulent 
 conveyance thereof prior to the entry of the judgment, 
 nor can he by such a conveyance be forced to pursue an 
 equitable remedy for the collection of his debt, instead of 
 a legal one, and the whole current of authority in this 
 State is to the effect that notwithstanding the fraudulent 
 conveyance, the judgment-creditor may sell the land 
 under execution upon his judgment, and the purchaser 
 may impeach the conveyance of the land in a suit at law 
 to recover possession, or if he can gain possession defend 
 the title thus acquired against the fraudulent grantee or 
 those claiming under him." ] 
 
 The jurisdiction over equitable interests at law is being 
 extended. 3 
 
 § 171. Judgment avoids sale only as to creditor — not abso- 
 lutely. —The principle must always be kept in view that 
 
 1 See Chautauque County Bank v. 
 Risley, 19 N. Y. 369 ; Bergen v. Car- 
 man, 79 N. Y. 153; Smith v. Reid, 11 
 N. Y. Supp. 739, 19 Civ. Pro. (N. Y.) 
 363. Compare, however, Lamont v. 
 Cheshire, 65 N. Y. 30; Porter v. 
 Pico, 55 Cal. 165, 175; Bergen v. 
 Snedeker, 8 Ahb. N. C. (N. Y.) 50-58 ; 
 Bockes v. Lansing, 74 N. Y. 437 ; 
 Erickson v. Quinn, 15 Abb. Pr. N. 
 S. (N. Y.) 168. Tbe rule as to lis 
 pendens must be observed in this con- 
 nection. In Hovey v. Elliott, 118 
 N. Y. 138, 23 N E. Rep. 475, the court 
 says: " The theory of the doctrine of 
 lis pendens is to preserve the situation, 
 as it is when the original litigation 
 is commenced, until its termination, 
 that the successful party may then 
 take the fruits of it without interrup- 
 
 tion from another, who may have, 
 during its pendency, sought to obtain 
 some right to the property in contro- 
 versy. Tilton v. Cofield, 93 0. S. 
 163; Lamont v. Cheshire, <'>•"» X. Y. 
 36, and cases there cited." An active 
 creditor must inform himself con- 
 cerning the exact status of pending 
 controversies affecting the propertj 
 which he has pursued, lest subse- 
 quent adjudications may relate hack 
 and undermine the apparenl title or 
 right which he has gained. 
 
 ■ Anderson v. Briscoe, 12 Bush. 
 (Ky.) oil : Kennedy v. Nunan, 52< !al. 
 326' ; LeRoy v. Dunkerly, 51 < al. 152 ; 
 Johnson v. Conn. Bank, 21 < !onn, 1 I s : 
 Eutchins v. Heywood, 50 N. II. 591 ; 
 Carleton v. Banks, 7 Ala. 82.
 
 l6 JUDGMENT avoids SALE. §171 
 
 a fraudulent sale is good between the parties. Giving 
 effect to this doctrine generally controls the form of the 
 judgment in a creditor's action. Thus in Orr v. Gil- 
 more, 1 the conveyance was found to be voidable as 
 against the creditor, but the court decided that the only 
 judgment to which the complainant was entitled was a 
 decree for the sale of the lot in suit and the payment of 
 the amount of the claim with interest and costs. The 
 sale being valid between the debtor and the fraudulent 
 vendee, there was nothing to warrant a judgment declar- 
 ing it null and void as to every one. In the case cited 
 the judgment which was held by the higher court to be 
 erroneous declared that the property belonged to the 
 debtor. This was manifestly wrong, for, where it does 
 not appear that there are other creditors, the judgment, 
 whether it directs a sale on execution by the sheriff,- or 
 by a receiver, 3 should only declare the conveyance void 
 as to the plaintiff's judgment, and direct a sale for the 
 payment of that alone. The grantee is entitled to all 
 that might remain of the proceeds in the shape of sur- 
 plus, 4 and, when the creditor is paid, the decree can- 
 celling the conveyance is satisfied. 5 " The action of 
 chancery," said Nelson, J., "upon the fraudulent grantor 
 or assignee, is only to the extent of supplying a remedy 
 to the suitor creditor ; as to all other parties, the assign- 
 ment remains as if no proceedings had been taken." 
 Under the Civil Code in Louisiana if the action is suc- 
 cessful the judgment is that the conveyance be avoided 
 
 1 T Lans. (N. Y.) 345; Duncan v. ' Van Wyck v. Baker, 10 Hun (N. 
 
 Custard, '.'1 W. Va. 731 ; Kennedy v. Y.) 40; Colhnson v. Jackson, B Saw- 
 
 Barandon, 67 Barb. (N. Y.) 209. yer, 365 ; In re Estes, <> Sawyer. 460. 
 
 Orr v. Gilmore, T Lans. (N. S\) Rawson v. Fox, 65 111. 202. See 
 
 345; Kennedy v. Barandon, 6? Barb. Bostwick v. Menck, 40 N. Y. 383; 
 
 X. Y) 309; Belgard v. McLaughlin, Kerr v. Hutchins, 46 Tex. 384. 
 
 t4Hun(N.Y.)557, 9N.Y. St. Rep. 38. ' McCalmont v. Lawrence, 1 
 
 Chautauque Co. Hank v. Bisley, Blatchf. 235. 
 19 X. Y 869.
 
 § 1/2 H DGME1S I Tl; VNSFERRING I II I I . 317 
 
 as to its effect on the complaining creditors. 1 Nor is 
 the judgment-creditor entitled to get satisfaction out of 
 anything but the actual interest of his debtor in the prop- 
 erty conveyed; if he is a junior judgment-debtor, the 
 fact that his judgment is used as a means of attack gives 
 him no priority over senior judgments." 
 
 § 172. Judgment transferring title. — The court has no 
 power to effect a transfer of title to land by ordering a sale 
 of it, except in special cases authorized by statute, such 
 as mortgage and partition sales, sales of infants' lands, 
 ordinary execution sales, and the like. In suits brought 
 to reach lands conveyed with intent to defraud creditors, 
 the proper decree, in New York at least, is to set aside 
 the fraudulent conveyance, and permit the creditor to 
 issue an execution and sell under it, or compel the debtor 
 to convey to a receiver and direct the latter to sell. It 
 was said by Gilbert, J., in Van Wyck v. Baker, 3 that " the 
 fraudulent deed being annulled, the title remains in the 
 debtor, and can be passed only by her deed." 4 If how- 
 ever, the receiver is directed to sell without obtaining a 
 prior conveyance from the debtor, the erroneous judgment 
 is not, as we have seen, 5 to be rectified by an appeal from 
 the judgment, but a motion should be made to correct 
 it.' 3 Where an execution purchaser seeks to cancel a cloud 
 on his title, of course no conveyance is requisite, as the 
 plaintiff will be left in the full enjoyment of the title 
 acquired by the sheriff's deed. 7 
 
 1 Claflin v. Lisso, 27 Fed. Rep. 420. Paige (N. Y.) 404 ; I lhautauque ( •> 
 
 -'Henderson v. Henderson, 133 Bk. v. Whit.', 6 N. Y. 236 ; Chau- 
 
 Penn. St. 399. 19 Atl. Rep. 424; tauque Co. Bk. v. Risley, 19 V V. 
 
 White's Bank v. Faithing, 101 N. Y. 369. See Dawley v. Brown, 65 Barb. 
 
 346, 4 N. E. Rep. 734; Wilkinson v. (N. Y.) 107. 
 
 Paddock, 57 Hun (N. Y.) 191, 11 N. See : L70. 
 
 Y. Supp. 442, affi'd 125 X. Y. 748, 27 "Cole v. Tyler, 65 N 5 
 
 N. E. Rep. 407. : Hager \. Schindler, 29 < !al. 69. li 
 
 3 10 Hun (N. Y.) 40. i s s ai'l in Auks v. Gilmore, 59 Mo. 
 
 4 Citing Jackson v. Edwards, 7 541, that courts of chancery may, in
 
 5 I S UNREPRESENTED PARTIES— CREDITOR SUING. §§ 1/3, 173a 
 
 £ 173. No judgment in favor of unrepresented parties. — In 
 a case before the Supreme Court of California 1 it was 
 said to be an anomaly in practice to render judgment in 
 favor of a party who was not before the court, and was 
 not represented in any manner in the action. This obser- 
 vation was made in an action brought by a creditor against 
 a fraudulent grantee to set aside a conveyance made by a 
 deceased debtor, the ground of relief assigned being that 
 the conveyance was made to hinder and delay creditors. 
 The representative of the deceased debtor was not a party. 
 The court very properly decided that it was error to ren- 
 der a judgment declaring a trust against the fraudulent 
 grantee and in favor of the unrepresented estate of the 
 grantor 
 
 § 173a. Creditor suing in place of assignee. — If an as- 
 signee refuses in a proper case to institute proceedings 
 to get possession of the assigned property, the creditors 
 collectively, or one suing in the right of all who may join 
 in the action, may compel the execution of the trust in 
 equity, 2 or cause the removal of the assignee and the 
 appointment of another. It seems, however, that in 
 either case a decree for a single debt would be erroneous ; 
 the decree must follow the assignment, and the fruits of 
 a recovery must be distributed according to its terms. 3 
 
 suits to annul a fraudulent deed, not ' Bach man v. Sepulveda, 39 Cal. 
 
 only divest the title of a fraudulent 688. 
 
 grantee, but the decree may proceed -' Lee v. Cole, 44 N. J. Eq. 322, 15 
 
 to vest thetitle in the plaintiff. See All. Rep. 531 ; White v. Davis, 48 N. 
 
 Kinealy v. Macklin, 2 Mo. A.pp. -Ml ; .1 Eq. 22,21 Atl. Rep. 1ST: Kalnius v. 
 
 Epperson v. Burgett, 33 A.rk. 328. Ballin, 52 N. J. Eq. 294, 28 Atl. Rep. 
 
 Tin' Logical theory upon which (his 791. 
 
 procedure is founded is not easily dis- 8 Crouse v. Frothingham, 97 N. Y. 
 
 covered, [n the absence of statutory 105. Compare Bate v. Graham, 11 N. 
 
 authority how can :i court become Y. '.':'>T : Everingham v. Vanderbilt, 
 
 1 1 of anj title which ii can 12 Hun (N. Y.) ','> ; Manning v. Beck, 
 
 confer or bestow upon the creditor? 129 X. Y. 1. '.".) N. E. Rep. 90; Lee v. 
 
 h^ province is to clear incumbrances Cole, II N. .1. Eq. 318, 15 All. Rep. 
 
 ierce 1 ransfers. 581 ,
 
 §§ 174- T 75 CONFESSION l II JUDGMEN I . 
 
 § 174. Confession of judgment. — A transfer of property 
 by a person heavily indebted, made by means of a con- 
 fession of judgment and sale on execution, was adjudged 
 void in Metropolitan Bank v. Durant, 1 upon proof that 
 it was intended to defraud creditors, and that the pur- 
 chaser had knowledge of the facts Collusive judgments, 
 as we have seen, 3 are always open to the attack of cred- 
 itors. A judgment entered by confession upon an insuf- 
 ficient statement of facts is effectual and binding: between 
 the parties, and a sale of property under it is legal and 
 valid against all the world except existing creditors having 
 a lien upon the property. 3 And while in the absence of 
 knowledge on the part of the creditor the fraudulent in- 
 tent of the debtor alone will not invalidate the judgment, 
 yet where the judgment is entered and execution levied 
 originally without his knowledge, his rights will be subor- 
 dinate to the ricrhts of creditors who took an attachment 
 before the said acts were ratified. 4 
 
 § 175. Impounding proceeds of a fraudulent sale. — W hile 
 it may be true that the money received by a fraudulent 
 vendee from the sale of the property is not legally a debt 
 due by the vendee to the fraudulent vendor, because the 
 court will not assist to enforce or render effectual the 
 fraud, yet in the intention of the parties it is a debt, and 
 creditors may treat it as such and attach or reach it by 
 judicial process. 5 The beneficent and remedial provi- 
 sions of the statute 13 Eliz. would be of little avail if a 
 fraudulent grantee could pass the property over to a mere 
 volunteer without notice of the fraud, and upon that 
 
 1 22 N. J. Eq. 35; White v. Beiij;i- 17 N. Y. 9; Mitchell v. Van Buren, 
 
 min, 3 Misc. (N. Y.) 490, 23 N. Y. 27 N. Y. 300. 
 Supp. 981. 'Galle v. Tode, 148 N. Y. 270, 12 N. 
 
 '-' See § 74, and note. E. Rep. 673. 
 
 -Miller v. Earl.', 24 N. V. 112. 'Heath v. Page, 63 Pa. Si 124; 
 
 Compare Marrin v. Man-in, 27 llmi French v. Breidelman, 2 Granl (Pa.) 
 
 (N. Y.) G02; Dunham v. Waterman, 319; Mitchell v. Stiles, 13 Pa. SI
 
 320 
 
 OUNTING BY FRAUDULENT VENDEE. 
 
 176 
 
 ground claim that the property or its proceeds were safe 
 from the pursuit of creditors. 1 
 
 § 176. Accounting by fraudulent vendee to debtor or 
 creditor. — Though a party may have intended to defraud 
 the creditors of a debtor by taking- and converting his 
 property into cash, such intent is rendered harmless by 
 his delivering the proceeds of the sale to the debtor or his 
 authorized agent. If the party has accounted to the 
 debtor for the proceeds of the property before proceedings 
 are taken against him by the creditor, he cannot be forced 
 to account for it over again." The creditor must show 
 that something remains which ought to be applied on the 
 judgment. Where a third person has in good faith 
 received a conveyance of the property in trust for an 
 alleged fraudulent grantee, and has subsequently con- 
 
 " Where a transfer of property is 
 made, which is held void under the 
 provisions of the bankruptcy act, as 
 againsl tin- assignee in bankruptcy, 
 the transferee is properly to be re- 
 garded as a trustee for tin- plaintiff, 
 and to I"' held to account as such, es- 
 pecially where, as in this case, il 
 appears that sonic, it' not all, of the 
 property, has passed away from the 
 transferee." Schrenkeisen v. Miller, 
 '.) Ben. 65. It dors not affed the 
 right of th^ creditor to an accounting 
 that the property was no longer 
 actually in tie- hands of the fraudu- 
 lent grantee at t he time the creditor 
 obtained judgment, if tin- fraudulent 
 grantee still retains a benefit from 
 the illegal transaction. McConihe v. 
 Derby, 62 Hun (N. V. . 90, 16 N. Y. 
 
 Supp. IT 1. 
 
 Cramer v. Bl I. 57 Barb. X. Y.) 
 
 If,:;, affi'd 48 N. Y. 684 ; Murphy v. 
 Briggs, 89 N. Y. 1 16 See < Iramer v. 
 
 Bl I. 57 Barb. (N. i .'171 ; Clements 
 
 \. M -e, 6 Wall. 299; Davis \. 
 
 .".' Barb. (N. Y | 180. In 
 
 Greenwood v. Marvin, 111 N. Y. 434, 
 19 N. E. Rep. 228, the New York 
 Court of Appeals said: "The equi- 
 table rights of the parties were to re- 
 main the same ; the legal owner was 
 to account to the other party for the 
 net profits of the business, and no 
 other mode of division is suggested 
 than that of equality". If, therefore, 
 that agreement effected any change 
 in the relations of the parties, it 
 operated as a temporary expedient to 
 bridge over the period of Le Grand 
 Marvin's pecuniary embarrassment, 
 presumably with a view of restoring 
 the original relations of the parties at 
 some future time when it would be 
 
 safe to <h> so. If that agreement was 
 
 executed. ;|s seelUS Very probahle, 
 
 with a view of hindering and delay- 
 ing the creditors of Le Grand, it was 
 -till competent for the parties, in the 
 absence of interference h\ creditors, 
 to rescind it at any time, and restore 
 t< > each ol her an equal legal interest 
 in the property acquired under such 
 agreement."
 
 § i77 
 
 PERS< >NAL 1 1 I >i . \1 | \ 
 
 veyed it to such grantee, pursuant to the trust, it has been 
 held that such third person is not a proper defendant in a 
 creditor's action, simply because no cause of action exists 
 against him. 1 The trustee, under an assignment of lands 
 which is declared fraudulent at the suit of a creditor, 
 cannot be compelled to account for the rents received and 
 applied according to the provisions of the trust, before 
 the commencement of the action." And a fraudulent 
 grantee who is forced to account to a creditor for rents 
 and profits, is entitled to an allowance for payments made 
 by him for taxes, interest on mortgages and repairs 
 necessary for the preservation of the propertv. The 
 accounting must proceed on equitable principles ; 
 
 § 177. Personal judgment against fraudulent vendee. -The; 
 right of a judgment-creditor to a personal or money judg- 
 
 1 Spicer v. Hunter, 14 Abb. Pr. (N. 
 Y.)4. 
 
 Relief at law and in equity. — In 
 Clements v. Moore, 6 Wall. 312, the 
 court said : " When the fact of fraud 
 is established in a suit at law, the 
 buyer loses the property without 
 reference to the amount or applica- 
 tion of what he has paid, and he can 
 have no relief either at law or in 
 equity. When the proceeding is in 
 chancery, the jurisdiction exercised 
 is more flexible and tolerant. The 
 equity appealed to — while it scans 
 the transaction with the severest 
 scrutiny — looks at all the facts, and 
 giving to each one its due weight, 
 deals with the subject before it ac- 
 cording to its own ideas of right and 
 justice. In some instances it visits 
 the buyer with the same consequences 
 which would have followed in an 
 action at law. In others it allows a 
 security to stand for the amount ad- 
 vanced upon it. In others it compels 
 tlir buyer to accounl only tor the 
 difference between the under price 
 21 
 
 which he paid and the value of the 
 property. In others, although he 
 may have paid the full value, ami the 
 property may have passed beyond the 
 reach of the process of the court, it 
 regards him as a trustee, and charges 
 him accordingly. Where lie has 
 honestly applied the property to the 
 liabilities of the seller, it may hold 
 him excused from further respon 
 sibility." 
 
 2 Coilumh v. Read, -J I X. 5 
 See ?' 36. As to when a judgment 
 against an assignee cancelling an as- 
 signment as fraudulent is a final judg 
 inent. and how the same should he 
 
 entered and enforced, see Myers v. 
 Becker, 95 N. V. 486. 
 
 3 Loos v. Wilkinson, 113 X. Y. [H5, 
 21 N. E. Rep. ".'•i-'. See Smith v. 
 Wis... 132 X. Y. 179, 30 N. E Rep. 
 329 ; Hamilton Xat. Bk. \. Balsted, 
 134 X. Y. 530, 31 N. E Rep 900 
 
 i lompare I >a\ is v. I pold, s ? N Y 
 
 020 ; Cutcheon y . I orbitt, '■»'.» Mich 
 578, 58 X. W. Rep IT'.i : Swift v. 
 Hart, 35 Bun (N Y.
 
 322 PERSONAL JUDGMENT. §177 
 
 ment against a fraudulent vendee of his debtor l comes 
 up frequently for adjudication, and is discussed in many 
 of the authorities. In the case of Ferguson v. Hillman,'~ 
 in the Supreme Court of Wisconsin, the conveyances and 
 mortgages had been adjudged fraudulent as to creditors, 
 and knowledge of the fraud had been fastened upon the 
 grantee. The familiar principle, elsewhere discussed, to 
 the effect that a fraudulent grantee in possession of the 
 property of the debtor cannot be protected, as against 
 the creditors of the debtor, even to the extent of the 
 money or other consideration given for the transfer, was 
 invoked and applied. 3 The court observed that it 
 seemed to follow as a necessary consequence that a 
 fraudulent grantee could not be protected in the posses- 
 sion of the proceeds of such property received by him 
 upon effecting a sale of it. The property in the hands 
 of a fraudulent purchaser is held by him in trust for the 
 creditors of the fraudulent vendor, and when the property 
 is converted into money the fund thus created is impressed 
 with the same trust. Were the rule otherwise, the grantee 
 might defeat the creditor's claim by fraudulently changing 
 the character of the property. In equity such money in 
 the hands of the fraudulent grantee is a fund held for the 
 benefit of the creditors of the grantor; and while such 
 creditors may not be able to maintain an action at law 
 for money had and received for their use, because they 
 were never the owners of, or had title to the property 
 which had been converted into money, yet a court of 
 equity, having all the interested parties before it. pos- 
 sessed the power to direct such application of it as would 
 
 Sei .' 62. v. Johann, 37 Wis. 246; Union Nat. 
 
 i5 Wis. lid). 10 X. W. Rep. 389. Bank v. Warner, 12 Bun (X. Y.)306; 
 
 Mason v. Pierron, 69 Wis. 585. 34 Briggs v. Merrill. 58 Barb. (N. Y.) 
 
 \. W. Rep. 921; Ringold \. Suiter. 389; Fullerton v. Viall, 42 Bow. Pr. 
 
 35 W. V.-i. 186,13 8. E Rep. 46. (N. Y. ) 294 ; Salt Springs Nat. Bank v. 
 
 Gardinier \. Otis, 13 Wis. 160; Fancher, 92 Bun(N. Y.), 327, 36 N. Y. 
 
 Stein \. Hermann, ',':; Wis. 132; Avery Supp. 742.
 
 S 177 PERSONAL JUDGMEN I . 
 
 be just. The court further held that if, in a proper 1 
 equity had the power to order the fraudulent grantee to 
 pay or apply the money received by him in satisfaction of 
 the debt of a creditor, then the fact that it directed a per- 
 sonal judgment to be rendered against him for the money 
 so received, and that the amount be collected on execu- 
 tion, was merely a matter of form, which did not prejudice 
 his rights, and of which he could not complain. Fuller- 
 ton v. Viall 1 is an authority in point in this discussion. 
 This important case, which certainly embodies features 
 of vital interest to creditors and vendees whose good 
 faith is questioned, seems to have been affirmed both at 
 the general term of the Supreme Court and in the Court 
 of Appeals of New York, without any written opinion 
 having been given. The published report of the case was 
 prepared by one of the counsel. The facts were briefly 
 as follows : The defendant had taken from a debtor a con- 
 veyance of real estate, subject to a mortgage of $800, 
 agreeing to pay $1,000 in addition. The sum of $500 
 was paid to the debtor in cash, and $500 by cancelling a 
 debt due from the debtor to the grantee. Before the 
 creditor's suit was instituted the grantee had sold the real 
 estate to a bona fide purchaser, and realized from such 
 sale the sum of $2,270. The court found that the con- 
 veyance was made in fraud of the grantor's creditors, and 
 that the creditors were entitled to judgment against the 
 fraudulent grantee for the value of the premises over and 
 above the prior valid incumbrances. The recovery was 
 not limited to the amount received by the fraudulent 
 grantee on the sale, but his liability was held to extend 
 to the value of the property fraudulently received by him. 
 
 1 42 How. Pr. (N. Y.) 294; Swin- Chamberlin v. Jones, ill 1 n< i. mi. 16 
 
 ford v. Rogers, 23 Cal. 233; .tones v. N. E. Rep 17s : Mason \. Pierron, 60 
 
 Reeder, 22 Ind. 111; Hubbell v. Wis. 583, 34 N. W. Rep.921 ; Christian 
 
 Currier, 92 Mass. 3:j:! : Dilworth v. v. Greenwood, 23 Ark. 258. See Rob 
 
 Curts, 139 111. 508, 29 N. E. Hep. S(il ; inson v. Holt. :'.'.) N. II. 557.
 
 324 Pi RS< >N \l JUDGMENT. § 1 78 
 
 and which he had put beyond the reach of the creditors 
 of his fraudulent grantor, subject, as already stated, to 
 the prior valid incumbrances The grantee must have 
 found in this case that the way of the transgressor was 
 hard, for he was neither allowed credit for his own debt, 
 which constituted part of the consideration, nor for the 
 $500 paid to his grantor in cash. 1 
 
 £ 178. — Murtha v. Curl.ey 2 apparently puts this ques- 
 tion of the creditors' right to a personal judgment against 
 the fraudulent vendee at rest in New York. The vendee 
 had foreclosed a fictitious chattel mortgage upon the 
 property of the debtor, and had converted the proceeds, 
 which exceeded the creditors' claim, to his own use. 
 A money judgment was directed against the vendee for the 
 amount of the plaintiffs' claim. The court held that this 
 did not stamp the action as being legal rather than equi- 
 table, and that the judgment was proper in form. Earl, J., 
 said : " A court of equity adapts its relief to the 
 exigencies of the case in hand. It may restrain or 
 compel the defendant ; it may appoint a receiver, or 
 order an accounting ; it may compel specific performance, 
 or order the delivery to the plaintiff of specific real or 
 personal property ; or it may order a sum of money to be 
 paid to the plaintiff, and give him a personal judgment 
 therefor." Where the property has been converted there 
 is nothing to be sold, and no occasion for a receiver and 
 
 See Union Nat. Bani v. Warner, Farlin v. Sook, 30 Kan. 401, I Pac. 
 
 1.' Hun. 306-308; Ferguson v. Hill- Rep. 123. In Solinsky v. Lincoln 
 
 man. 55 Wis 192, 12 X. W. Rep. 389. Savings Bank, 85 Tenn. 372, the court 
 
 mi X. Y. :;:•.': 12 AM.. N. C. (N. says: "When a fraudulent vendee 
 
 Y 12, and notes; s p., Warner v. has so concealed or disposed of the 
 
 Blakeman, 4 Abb. Ct A.pp. Dec. (N. property that creditors cannot reach 
 
 Y.iVin: Smith \. Sands, I? Neb. Ill*, or identify it. the creditor may. in 
 
 23 x. \\'. Rep. 356, citing the text : equity at least, recover the proceeds 
 
 Valentine \. Richardt, 126 X. Y. J 7 7 . or value thereof." Compare Bads v. 
 
 '.-; X. E. Rep. 255; Bell v. Merrifield, .Mason, L6 Brad w. (111.) 545. 
 Hi!) X. Y. 207, Hi X. E. Rep. 55 ;
 
 § 179 ^ |( »NEY JUDGM1 
 
 
 no special need to state an account. 1 In Williamson v. 
 Williams,' the fraudulent vendee had sold the land to a 
 bona fide purchaser, and it was said that having deprived 
 the creditor of the property, and obtained its price, he 
 must be held responsible by reason of this fraudulent 
 disposition of the property to the amount of the consid- 
 eration received by him. The money stood for the land 
 in his hands." 
 
 § 179. Money judgment, when disallowed.— McLean v. 
 Cary, 4 in the New York Court of Appeals, is a peculiar 
 case in which a money judgment was denied. Plaintiff 
 was a judgment-creditor. It was proved substantially thai 
 the debtor Greene sold to the other defendants certain 
 machinery with an agreement that $12, coo of the consid- 
 eration was to be paid in steam power. At a time when 
 $9,000 remained unpaid a settlement was effected practi- 
 cally on the basis of a balance of $4,000. The court 
 avoided the settlement as being fraudulent against the 
 creditor, and the question as to the authority to render a 
 money judgment against the defendants was presented 
 The complaint, it may be observed, prayed that the settle- 
 ment beset aside as fraudulent, that a receiver be appointed, 
 and that the creditor be paid out of the moneys realized 
 by the receiver. No money judgment was demanded, 
 and the court held that under the circumstances none 
 
 1 See also Gillett v. Rate, 86 N. Y. poses of this case, I" considered in 
 
 87, 10 Abb. N. C. (N. Y.) 88; Steere equity as the laud Itself." 
 
 v. Hoaglaud, 50 111. 877; Quinby v. ; In Wheeler v. Wallace, 53 Mich. 
 
 Strauss, 90 N. Y. 664. 355, ill N. W. Rep. :!:'.. it was held 
 
 •11 Lea (Tenn. ) 370. In Valentine that creditors levying upon property 
 
 v. Richardt, 126 1ST. Y. 277, 27 N. E. fraudulently transferred had no 
 
 Rep. 255, the court says : "The fraud- right to take from the transferee the 
 
 ulent conveyance which the defend- increase it thej had allowed ii '■> 
 
 ant obtained from the owner of the accumulate for a long time under his 
 
 land enabled him to sell it to a pur- management before attacking the 
 
 chaser in good faith and the money transaction, 
 
 that he received therefor, with the 4 88 X. V. 391. 
 interest thereon, can, for all the pur-
 
 326 PERSONAL JUDGMENT AGAINST WIFE. § 180 
 
 was authorized, as the contract was payable in steam 
 power and not in money. Under the practice in Illinois 
 it seems to be implied that a personal or money judgment 
 is improper in an action to annul a fraudulent transfer. In 
 Patterson v. McKinney ' this objection was taken, but the 
 court said that as the cause was to be remanded it could be 
 obviated by making an alternative decree providing that, 
 if the judgment was not paid within a time to be limited, 
 the land should be sold on execution. In Dunphy v. 
 Kleinsmith, 2 which was a creditors' suit against a fraudu- 
 lent vendee, a judgment for damages was held to be 
 improper ; the correct relief was said to be by decree for 
 an account. 3 
 
 >: 180. Personal judgment against wife.— Where property 
 is conveyed to a wife in fraud of her husband's creditors, it 
 seems that a judgment in personam for its value cannot be 
 taken against the wife, nor in case of her death, against her 
 executors. 4 Miller, J., said : " While the books of reports 
 are full of cases in which real or personal property con- 
 veyed to the wife in fraud of the husband's creditors has 
 been pursued and subjected to the payment of his debts 
 after it had been identified in her hands, or in the hands of 
 voluntary grantees or purchasers with notice, we are not 
 aware of any well-considered case of high authority where 
 the pursuit of the property has been abandoned, and a judg- 
 ment in personam for its value taken against the wife. 
 Certainly no such doctrine is sanctioned by the common 
 law ; and, though the present suit is a bill in chancery, the 
 decree in this case is nothing more than a judgment at law, 
 and could as well have been maintained in a separate suit 
 
 1 97 111.41. 52. followed. Trust Co. v. Sedgwick, 97 
 
 II Wall. 615 ; compare Maun v. U. S. 304; Huntington v. Saunders, 
 
 Appel, 31 Fed. Rep. 383. 100 U. S. 78, 7 8. C. Rep. 356. The 
 
 See .' "il rases are approved in< 'lark v. Beecher, 
 
 * Phippa v. Sedgwick, 95 U. S. 9: 154 U. S. 631.
 
 § l80 PERSONAL JUDGMENT AGAINST Will. 
 
 at law for the money as in this suit. And the liability of 
 the executors of the wife to this personal judgment must 
 depend on the same principle as if, abandoning the pursuit 
 of the res, the assignee had brought an action at law for 
 the money." The modifications in the law peculiar to the 
 relationship of husband and wife with reference to their 
 property are so many and important that it would In- 
 impracticable to attempt to formulate rules intended for 
 general application to the subject. These Supreme Court 
 cases certainly accomplish an unfortunate result, and prob- 
 ably will not be universally accepted, if, indeed, the princi- 
 ples they embody are not superseded in some States by the 
 removal of the disabilities incident to coverture. In Post 
 v. Stiger 1 it appeared that property had been conveyed to 
 a wife in fraud of the husband's creditors. The wife set 
 up as a defense the fact that she had disposed of it. The 
 court said that she must answer for its value. An attempt 
 was made to show that she had subsequently lost by bad 
 bargains all the property that she had acquired by the con- 
 veyance. The proofs did not seem to sustain this view. 
 but the court remarked that even if it had been so proved 
 this would not relieve her from liability, and continuing 
 said: "She held the property as trustee of her husband's 
 creditors, and dealt with it at her peril. A fraudulent 
 grantee cannot repel the claims of the creditors of the 
 grantor, by simply saying : ' I have lost, by imprudent bar- 
 gains or collusive foreclosures, the property I attempted to 
 conceal, and, therefore, I am answerable for nothing.'" It 
 may be urged that this case is a dictum on the point cited. 
 This is probably a legitimate criticism, for the court prac- 
 tically found that the wife still had the property; yet as an 
 expression of opinion of a highly intelligent court pointing, 
 as we claim, in the right direction, we regard the dictum 
 as worthy of adoption as an absolute authority. 
 
 1 29 N. J. Eq. 55S. See Lee v. Cole, 44 N. J. Eq. 318, m Ail. Rep. 531.
 
 5 ;8 FORM OF JUDGMENT. § l8l 
 
 § 181. Judgment must conform to relief demanded. — As a 
 aeneral rule, the judgment must harmonize with the 
 
 O JO 
 
 demand for relief, 1 though, as we have seen under the 
 modern procedure, a mistake in the prayer is not fatal, and 
 equity may, in its discretion, award a judgment such as the 
 facts justify. In Curtis v. Fox, 2 the plaintiff failed to 
 establish that the conveyance by the debtor to his wife 
 was fraudulent, and the complaint was consequently dis- 
 missed. It appeared that the wife died pending the action, 
 and the creditor contended that the debtor defendant 
 thereupon acquired a legal interest in her real estate, and 
 that, instead of dismissing the complaint, a judgment 
 should have been rendered providing for the sale of such 
 interest, and an application of the proceeds to the satis- 
 faction of the creditor's judgment. Cases like the Bank 
 of Utica v. The City of Utica, ;J and Cumming v. The 
 Mayor of Brooklyn, 4 were cited, in which it was held that 
 where both parties agree to submit the case to the juris- 
 diction of chancery, or the defendant omits to raise the 
 objection by plea or in his answer, the court will retain 
 jurisdiction and determine the case, although the plaintiff 
 may have an adequate remedy at law. But the court held 
 that the principle of these cases had no application to the 
 case of Curtis v. Fox above cited, because in that case Fox 
 had no legal interest in the land, and did not acquire any 
 until long after putting in his answer. The complaint did 
 not allege any such interest, but sought relief solely upon 
 the ground that the title of the wife was fraudulent 
 as against the plaintiff, and this was the matter litigated. 
 As the husband had no opportunity to raise the objection 
 that a sale on execution was the proper remedy of the 
 plaintiff, so far as the interest acquired upon the death of 
 his wife was concerned, his silence did not waive it. 
 
 1 Dumpliy v. Kleinsmith, 11 Wall. :i 4 Paige (N. Y.) 399. 
 615. * 11 Paige (N. Y.) 596. 
 
 i; \. Y. 299.
 
 § [82 MUST ACCORD Willi COMPLAINT. 
 
 § 182. Must accord with complaint.— It lias been held in 
 New York to be no ground of reversal of a judgment thai 
 the relief it extended was not prayed for in the complaint, 
 provided it was such a decree as the plaintiff was entitled 
 to upon the evidence. 1 While the effect of an erroneous 
 prayer in a complaint can ordinarily be overcome, yet the 
 general rule is that the allegations of the complaint must 
 support the judgment. Thus, it was said by the Supreme 
 Court of California, that a judgment which was not sup- 
 ported by the pleadings was as fatally defective as one 
 which was not sustained by the verdict or finding. The 
 judgment must accord with and be warranted by the plead- 
 ings of the party in whose favor it was rendered. ~ This 
 may be true under the liberal interpretation of the statutes 
 regulating the reformed procedure, but it is unwise for a 
 complainant to place strong reliance upon such a rule of 
 practice. On the contrary, the bill should shadow forth the 
 case which the evidence is calculated to disclose, or the 
 variance may prove fatal. Thus, where the bill impeached 
 a deed, and prayed its avoidance upon allegations of actual 
 fraud, there is authority that, where the defendant is 
 brought into court to answer such a charge, and so effect- 
 ually repels it that the court would not be justified in 
 holding that the averment was proved, the complainant is 
 not at liberty to change his ground, and obtain other 
 relief, based upon proof of constructive fraud, or other 
 equities supposed to be established by the evidence. 3 
 And, where a bill charges actual and intentional fraud. 
 
 1 Buswell v. Lincks, 8 Daly (N. 574. "If a bill charges fraud as a 
 Y.) 518. ground of relief, fraud must be proved. 
 
 2 Bachman v. Sepulveda, 39 Cal. The proof of other facts, though such 
 689; Bailey v. Eider, 10 N. Y. 363. as would be sufficient, under some 
 The plaintiff cannot support a re- circumstances, t<> constitute a claim 
 covery on a ground that be expressly for relief under another bead of 
 repudiates. McCarthy v. Scanlon, equity, will nol prevent the bill from 
 176 Pa. St. 262, 35 Atl.Rep. 189. being dismissed." See also Fisher v. 
 
 3 Clark v. Krause, 2 Mac-key (D. C.) B ly, 1 < nil. C. C. 206.
 
 330 CONTRADICTORY VERDICTS — NEW TRIAL. §§ I S3, [83a 
 
 and the prayer for relief proceeds upon that theory, the 
 complainant cannot, under the prayer for general relief, 
 rely upon circumstances which make out a case for relief 
 under a distinct head of equity, although such circum- 
 stances substantially appear in the bill, but are charged 
 only in aid of the actual fraud alleged. 1 
 
 Manifestly a court of equity may adapt its relief to the 
 exigencies of the case. 3 
 
 § 183. Contradictory verdicts. — In Love v. Geyer, 3 which 
 was an action brought by a judgment-creditor of the 
 grantor, against the grantor and grantee, to avoid a fraudu- 
 lent conveyance, a general verdict was returned against 
 both defendants. A new trial was awarded to the grantor 
 and denied to the grantee, and the case was continued 
 without judgment. At a subsequent term the cause was 
 tried by the court as to the grantor, and a finding and 
 judgment rendered in his favor. The court, over the 
 objection of the grantee, rendered judgment against him, 
 upon the former verdict of the jury setting aside the con- 
 veyance as fraudulent. On review, the judgment was 
 very correctly held to be erroneous. 4 Clearly, if no fraud 
 had been practiced by the grantor, it was an absurdity to 
 find that, as to the grantee, the conveyance was fraudu- 
 lent. Both parties must necessarily be implicated in the 
 fraud. 
 
 § 183a. New trial. — The statutes granting statutory new 
 trials as matter of right are not applicable to suits brought 
 to annul fraudulent conveyances. 5 
 
 1 Eyre v. Potter, 15 How. 42. See 346 ; also Hollingsworth v. Crawford, 
 
 § 155. 60 lnd. 70. 
 
 Valentine v. Richardt, 126 N. Y. 5 See Somerville v. Donaldson, 26 
 
 272 ; Murtha v. Curley, 90 N. Y. 372 ; Minn. 75, 1 N. W. Rep. 808 ; Shumway 
 
 Van Rensselaer v. Van Rensselaer, v. Shumway, 1 Lans. (N. Y.) 474, 
 
 I!:; N. V. 208, 214, 21 N. E. Rep. 75. affi'd 42 N. Y. 143; Perry v. Ensley, 
 
 3 1 1 11.I. 12. 10 lnd. 378 ; Sedg. & Wail on Trial of 
 
 'See Romine \. Romine, 59 lnd. Title to Land, (2d ed.) § 595.
 
 CHAPTER XII. 
 
 PROVISIONAL RELIEF — INJUNCTION — RE- 
 CEIVER — ARREST. 
 
 £ 184. Provisional relief. 
 185. Injunction, when allowed. 
 lS(i. When injunction refused. 
 187. Receiver in contests over real 
 property. 
 
 188. Receivers of various interests. 
 
 189. Title on death of receiver. 
 
 190. Removal and dismissal of re- 
 
 ceiver. 
 
 191. Arrest of defendant. 
 
 § 184. Provisional relief. — In view of the class of debtors 
 and alleged purchasers against whom creditors are com- 
 pelled to litigate, it is perhaps needless to recall the great 
 importance of prompt and efficient provisional remedies 
 easily accessible to complainants. The defendants may 
 be contemplating flight, or may be engaged in wasting or 
 converting the property with a view of thwarting the 
 creditors' proceedings. The relief afforded by final decree 
 will perhaps come too late to be practically effectual. 
 In some instances an order of arrest may be procured 
 against the person of the debtor, or of his co-conspira- 
 tors ; in others an injunction may issue restraining any 
 misuse, incumbrance, or disposition of the property claimed 
 to have been covinously alienated; while in others a 
 receiver may be appointed to take possession and care of 
 the property pending the litigation. 1 Indeed, the appoint, 
 ment of a receiver in a creditors' suit is said to be almost 
 a matter of course, 3 though this broad proposition has 
 been denied. 3 A receiver may even be appointed before 
 
 1 Ellett v. Newman, 92 N. C. 523. appoint a receiver, Shainwald v. 
 
 2 Bloodgood v. Clark, 4 Paige (N. Lewis, 7 Sawy. 148. 
 Y.) 577 ; Fitzburgh v. Everingham, 6 Rodman r. Harvey, L02 N 
 
 Paige (N. Y.)29; Runals v. Hardin-, 8 S. E. hep- 888; Dollard v. Taylor, 
 
 83 111. 75 ; Shainwald v. Lewis, 6 Fed. 33 N. Y. Super. Ct. 196. 
 Rep. 770. See as to jurisdiction to
 
 332 [NJUNCTK >\. § 185 
 
 answer filed in an urgent case, 1 or before judgment, 2 but 
 only when it is manifest that the fund is in danger of 
 being lost. 3 Misconduct and insolvency of the defendant 
 enter into the merits of the application. 4 The receiver- 
 ship will be denied when it does not distinctly appear that 
 there is any property to be preserved. 
 
 £ 185. Injunction, when allowed. —As has been elsewhere 
 shown, the courts will not, ordinarily, interfere by injunc- 
 tion, or otherwise, at the instance of a contract-creditor, 
 to restrain the debtor's control over his business, or 
 any disposition of his property. 6 Hyde v. Ellery 7 is an 
 exception to the usual rule, additional to those heretofore 
 noticed. 8 It appeared in that case that the debtor 
 had, by fraudulent means, purchased a large quantity of 
 goods from various merchants, upon credit, and had sold 
 the goods at auction so that it was practically impossible 
 to trace them. An injunction was allowed in favor of 
 simple contract creditors, upon the theory that its issuance 
 would prevent a multiplicity of suits, and furthermore, 
 because, as the relief sought was to set aside a transaction 
 entered into with the intention to defraud creditors, an 
 injunction was necessary as ancillary to that relief. In 
 another case which arose in Pennsylvania it was decided 
 that a fraudulent severance of fixtures, made with a design 
 
 1 Weis v. Goetter, 72 Ala. 259 ; Micou 5 First National Bank v. Gage, 79 
 
 \. Moses, 72 Ala 439. 111. 207. 
 
 2 Co1hh v. Meyers, 42 Ga. 46. See 6 Uhl v. Dillon, 10 Md. 500 ; Mc- 
 
 Heyneman v. Dannenberg, 6 Cal. Goldrick v. Slevin, 43 Ind. 5:2:2 : 
 
 376; Field v. Holzmati, 93 Ind. 205; Dodge v. Pyrolueifce Manganese Co., 
 
 Wblfev.Claflin,81Ga.64,6S.E. Rep. 69 Ga. 665; Johnson v. Farnum, 56 
 
 599; ortoi, v. Madden, 75 Ga. 83; Ga. 144; Adee v. Bigler, 81 X. Y. 
 
 Cogburn v. Pollock, 54 Miss. 639. 349; May v. Greenbill, 80 Ind. 124; 
 
 Rheinstein v. Bixby, 92 X. C. 307. Whitney v. Davis, 148 X. V. 250, 42 
 
 See W. Thorn v. Kalm. 93 Ala. 207,9 N. E. Rep. 661; Spelman v. Freed- 
 
 So. Rep. 729. man, 130 X. Y. 425, 29 N. E. Rep. 765. 
 
 *Werborn v. Kalm, 93 Ala. 207, 9 See § 52. 
 
 So. Rep. 729. 7 18 Md. 501. 
 
 »See ? 5:?.
 
 § I 85 [NJUNCTII IN. 5 5 j 
 
 to defeat the lien of a judgment, could be restrained in 
 equity. 1 And an injunction has been issued in aid of an 
 attachment. 3 
 
 In suits to annul fraudulent transfers relief by injunc- 
 tion is often indispensable. Thus, where the petition 
 alleged that an action was pending by plaintiff against one 
 of the defendants, in which certain real estate, which had 
 previously been fraudulently conveyed to another defend- 
 ant, was attached, and the defendants were about to dis- 
 pose of such real estate for the purpose of defeating 
 plaintiff's claim, it was decided that a temporary injunc- 
 tion restraining such sale was properly continued to the 
 final hearing, notwithstanding the filing of an answer deny- 
 ing all fraudulent intent. 3 In a case in which the bill 
 charged that the defendant, who was a trustee under an 
 assignment for creditors, was a notoriously bad character, 
 and had refused to allow an inventory of the assigned 
 property to be made, and hence, if loss resulted, the cred- 
 itors would be unable to show the extent of it, the court 
 held that it was justified in granting an injunction and 
 appointing a receiver without notice.' 1 Doubts as to the 
 good faith of an assignment and the solvency of the 
 assignee will justify an injunction against a sale."' And 
 where a suit was brought by creditors of a deceased 
 debtor to reach property fraudulently alienated by him 
 in his lifetime, it was decided that pending the suit the 
 court properly enjoined the defendant from incumbering 
 or conveying the land.' 5 So an injunction may issue to 
 stay waste. 7 So a defendant may be restrained pending 
 
 1 Winner's Appeal, 45 Pa. St. 455. 'Rosenberg v. Moore, 11 Md ::;>'• 
 
 Compare Gill v. Weston. 110 Pa. St. See Blondheim v. Moore, 11 Md 
 
 317, 1 Atl. Rep. 921. Preiss \ Cohen, 112 N. C 278, 17 
 
 -People, ex rel. CaufTman, v. Van S. E. Rep 520. 
 
 Buren, 136 N. Y. 252, ::\! X. E. Rep. ' Appeal of Fowler, 81 Pa St. M9 
 
 775, i Tessier v. Wyse, 3 Bland'e I !h. 
 
 3 Joseph v. McGill, 52 Iowa, 127. (Md. i 29.
 
 334 WHEN INJUNCTION REFUSED. §§186,187 
 
 the hill from incumbering shares of stock sought to be 
 reached by a creditor. 1 A chattel mortgagee may be 
 restrained from exercising his power of sale on a bill filed 
 to annul the mortgage. 2 It may be observed that a 
 denial in the defendant's answer that he has any property 
 does not constitute a cause for dissolving an injunction 
 restraining him from assigning or disposing of his prop- 
 erty. 3 And if creditors choose to permit the officers and 
 directors of an insolvent corporation to remain in posses- 
 sion and control of its assets, the mere fact of insolvency 
 will not operate as an injunction against any creditor 
 from obtaining a preference through legal process or by 
 agreement with the corporation. 4 
 
 §186. When injunction refused. — An injunction will not 
 be issued unless facts are shown from which an issuance 
 appears to be a necessity in order to save the creditor's 
 rights, and to prevent the wasting of the subject-matter 
 of which he is in pursuit. Thus, in Portland Building 
 Association v. Creamer, 5 it appeared that a creditor's 
 bill was was filed to set aside as fraudulent a conveyance 
 of lands about one-half of which was woodland. The 
 court held that an injunction which restrained the grantee 
 from cutting and removing the timber from the premises 
 would not be continued, it being shown that the value of 
 the land, without the timber, was ample to satisfy the 
 creditor's claim in case the conveyance should ultimately 
 be annulled. 
 
 .^187. Receiver in contests over real property. — Where 
 real property is fraudulently transferred, the court, as we 
 have seen, may adjudge and direct a transfer to a 
 
 1 MacKaye v. Soule, 25 N. Y. Supp. 3 New v. Bame, 10 Paige (N.Y.) 502. 
 
 798. 1 Rickerson Rolling .Mill <'<>. v. Far- 
 
 ■ Bennetl v. Wright, ;; linn (N. fell F. & M. Co., 13 U. S. App. 172. 
 
 V.i 331, 28 N. Y. Supp. I.-,:;. ;;| N. .). Eq. 107.
 
 § 1 87 
 
 REl EIVER. 
 
 335 
 
 receiver. 1 Vause v. Woods 2 is an illustration of the dis- 
 inclination of the court to interfere by the appointment 
 of a receiver of real property, where the party in posses- 
 sion has what purports to be the legal title. The < 
 came up on appeal from an order appointing a receiver 
 upon a creditor's bill to take possession of the property 
 alleged to have been conveyed in fraud of the plaintiff. 
 Simrall, J., said (p. 128) : " As against the legal title, the 
 interposition is with reluctance ; it will only be done in 
 case of fraud clearly proved, and danger to the property."'' 
 Provisional relief is not encouraged in land cases, because 
 the subject-matter of contention is immovable, practically 
 indestructible, and, unlike personalty, cannot be spirited 
 away. l In New York a receiver will not be appointed 
 in ejectment before judgment. 5 This practice has been 
 a subject of criticism. The rule is otherwise in an 
 equitable action to annul a conveyance of real prop- 
 erty, even though it is conceded that ejectment could 
 have been brought in the place of the equitable action ; ' 
 
 1 Cole v. Tyler, 65 N. Y. 77 ; Mc- 
 Caffrey v. Hickey, 66 Barb. (N. Y.) 
 489, 492 ; Chautauque County Bank 
 v. Risley, 19 N. Y. 369 ; White's Bank 
 of Buffalo v. Farthing, 9 Civ Pro. (N. 
 Y.) 66, 101 N. Y. 344, 4 N. E. Rep. 
 734. See § 170. 
 
 2 46 Miss. 120. 
 
 3 Compare Lloyd v. Passingham, 16 
 Ves. Jr. 68 ; Mays v. Rose, Freem. 
 Ch. (Miss.) 718; Jones v. Pugh, 8 
 Ves. 71 ; Walker v. Denne, 2 Ves. Jr. 
 170 ; Mapes v. Scott, 4 111. App. 268 ; 
 Sedg. & Wait on Trial of Title to Land, 
 Chapter XXIII ; Rheinstein v. Bixhy, 
 92 N. C. 307 : Beach on Receivers, 
 § 67. 
 
 4 Sedg. & Wait on Trial of Title. 
 § 631. 
 
 5 Guernsey v. Powers, d Bun (N. 
 Y.) 78; Burdell v. Burdell, 54 Mow. 
 
 Pr. (N. Y.) 91 ; Thompson v.Sherrard, 
 85 Barb. (N. Y.) 593; Sedg. & Wad 
 on Trial of Title (2d ed.), ?' 615. In 
 La Ban v. Huetwohl, 60 Hun (N. Y.) 
 408, 15 N. Y. Supp. 491, the court 
 says: " The law will not take the prop- 
 erty of a defendant from him pending 
 an action for its recovery : and that 
 wise and salutary rule would be vio- 
 lated if a receiver could be appointed 
 to take the rents." 
 
 6 Sedg. & Wait on Trial of Title (2d 
 ed.), >?632. 
 
 i Mitchell v. Barnes, 22 Bun (N. Y. 
 194. See the dissenting opinion of 
 Learned, P. J., in this case. The suit 
 was instituted to annul a deed upon 
 the -round that the grantor was in 
 sane, and the conveyance was pro 
 cured by improper influences. The 
 same relief could have been procured
 
 RECEIVERS OF VARIOUS INTERESTS. 
 
 § 188 
 
 but even in such cases the relief is not easily se- 
 cured. 1 
 
 £ 188. Receivers of various interests. — Receiverships are 
 ordinarily allowed only in clear cases. 2 The receiver is 
 appointed for the benefit of all parties who may establish 
 rights in the case. 3 The pendency of the proceeding 
 supersedes the right of the debtor to transfer his prop- 
 erty. 4 On supplementary proceedings under the Wis- 
 consin Code to enforce a decree for alimony, the court 
 may appoint a receiver to take possession of the effects 
 of the defendant in the divorce proceedings ; the sheriff's 
 return of the execution is sufficient ground therefor, and 
 the receiver thus appointed may attack a fraudulent con- 
 veyance of the debtor's real estate made with intent to 
 defeat the decree for alimony. A receiver has been 
 appointed of crops growing on a plantation ; 6 and in a 
 case where an annuity, which was charged upon real 
 property, was in arrear, 7 and also of a living. 8 That the 
 
 in ejectment. Van Deusen v. Sweet. 
 51 N. Y. 378. Hence, as a receiver 
 could not be had in ejectment, it was 
 argued, in this dissenting opinion, 
 that, by analogy, none should he 
 appointed in the suit in equity. The 
 majority of the court declined to 
 adopl this view. A i-eceiver is fre- 
 quently appointed in suits to foreclose 
 mortgages, when it appears that the 
 seen riiy is insufficient and the mort- 
 gagor is insolvent. See Haas v. Chi- 
 cago Building Society, 1 Am. Insolv. 
 Rep. 301 : Myers v. Estell, 48 Miss. 
 372; llyinan v. Kelly, 1 Nev. 179. 
 See [ns. Co. v. Stebbins, 8 Paige (N. 
 Y i 565 : Cheever v. Rutland & B. R. 
 R. Co., 39 Yi. 654 ; Brown v. Chase. 
 Walker's Ch. (Mich.) 43; Finch v. 
 Houghton, 1!) Wis. 150 : < 'allanan v. 
 Shaw. 19 Iowa. 183. Ami a receiver 
 may be had in an action to foreclose 
 
 a contract for the sale of land. Smith 
 v. Kelley, 31 Hun (N. Y.) 387. 
 
 1 McCool v. McNamara, 19 Abb N. 
 C. iX. V.)344. 
 
 2 Fox v. Curtis. 176 Pa. St. 52. 34 
 Atl. Rep. 952; Chicago & A. Oil & 
 Mining Co. v. U. S. Petroleum Co., 
 57 Pa. St. 83. 
 
 3 First Nat. Bk. v. Barnum Wire & 
 Iron Works, 60 Mich. 199.27N.W. Rep. 
 567; Delany v. Mansfield, 1 Hogan 
 'Irish Rolls Ct.) 234; Hooper v. Win- 
 ston. 21 III. 353. 
 
 4 Journeay v. Brown, 26 N. J. Law, 
 111. 
 
 Marker v. Dayton. 2S Wis. 307. 
 
 " Micou v. Moses, 72 Ala. 1:59. See 
 
 llemlriv v. American F. L. Mortgage 
 
 Co., 95 Ala. 313, II So. Rep. 213. 
 
 Sankey v. O'Maley, 2 Moll. 491. 
 
 N Hawkins v. Gathercole, 31 Kng. L. 
 
 & Eq. 305 : Beach on Receivers, § 619.
 
 § 189, I90 TITLE OX DEATH OF I' I I I ! ', ER. 
 
 debtor is insolvent, the grantee a non-resident, and the 
 goods are being taken from the jurisdiction will warrant 
 a receiver. 1 The allegation of insolvency is vital under 
 the reformed procedure, allowing a bill by a simple con- 
 tract creditor.' 3 Where a decision is rendered setting 
 aside a sale of land, a receiver may be appointed to sell 
 and convey the property. 5 A receiver was appointed 
 after judgment in New Jersey to receive rings and 
 jewelry, which were decreed not to be wearing apparel. 1 
 So a receiver may be had of a stock exchange seat. 6 
 
 § 189. Title on death of receiver. — Where a receiver of 
 a debtor's property has been appointed, and the debtor 
 has executed the usual assignment of the property to him. 
 upon the death of the receiver the title to the property 
 vests in the court. The receiver's possession is the 
 court's possession, and he is merely its agent or repre- 
 sentative. The functions of the receiver continue after 
 the death of the appointee, and it is competent for the 
 court to appoint a successor to conduct and complete the 
 litigation, and in other respects fulfil the duties which 
 the first receiver left incomplete. Nor is it necessary 
 that the defendants in the suits should be given notice of 
 proceedings for the appointment of a successor to the 
 first receiver." 
 
 § 190. Removal and dismissal of receiver. — I he removal 
 of a receiver is a matter resting in the sound discretion 
 
 •Heard v. Murray, 93 Ala. 127. 9 * Frazier v. Barnum, 19 X. J. Eq. 
 
 So. Rep. 514. 316. 
 
 8 Moritz v. Miller, 87 Ala. 331, 6 So. Habenich* v. Lissak, Ts ' !al. 351, 
 
 Rep. 269. 20 Par. Rep. 874. 
 
 3 Shand v. Hanley, 71 X. Y. 319. 6 NicoU v. Boyd, 90 V Y. 519. 
 
 In Massachusetts a receiver will not A change in receivers either l»\ 
 
 be appointed to collect choses in ac- resignation or removal does nol abate 
 
 tion due the debtor from persons re- the action. Begewisch v. Silver, 140 
 
 siding in another jurisdiction. Amy X. Y. 111. 35 N\ E. Rep. 658 
 
 v. Manning, 149 Mass. 487, 21 X. E. : NicoU v. Boyd, 90 X. Y. 519 
 
 Rep. 49:}. ~ also Ativ.-(M.nl. v. Day, 2 Madd
 
 338 REMOVAL AND DISMISSAL OF RECEIVER. § I90 
 
 of the court. 1 "The jurisdiction of a court of equity," 
 says Mr. High, 2 " which is exercised in the removal 
 of receivers, bears a striking resemblance to that which 
 is called into action upon the dissolution of an interlocu- 
 tory injunction, and in both cases the power to terminate 
 seems to Mow naturally and as a necessary sequence 
 from the power to create. And as an interlocutory 
 injunction is usually dissolved upon the coming in of 
 defendant's answer, denying under oath the allegations 
 of the bill, 3 so in the case of a receivership, if the answer 
 under oath fully and satisfactorily denies the equities of 
 the bill, or the material allegations upon which the appoint- 
 ment was made, and these allegations are not sustained 
 by any testimony in the case, the order of appointment 
 will be reversed and the receiver removed." 4 It is said that 
 the high prerogative act of taking property out of the hands 
 of a party and putting it in pound ought not to be exercised 
 except to prevent manifest wrong imminently impending. 
 And when the court, upon the coming in of the answer, 
 discovers that the danger is not imminent, and that there 
 is no pressing necessity for the order, it may be revoked 
 or modified on such terms as the court thinks wise/' We 
 may here state that it is not a sufficient cause for remov- 
 ing a receiver of a judgment-debtor that he has employed 
 the debtor as an agent to assist in collecting the assets, 
 the receiver being solvent and the trust otherwise prop- 
 
 1 First Nat. B'k v. E. T. Bamum fern v. Butler, 18 N. J. Eq. 220 ; Park- 
 Wire & Iron Works, 60 Mich. 499, 27 inson v. Trousdale, 4 111. 367 ; Roberts 
 N. \V. Rep. 657. v. Anderson, 2 Johns. Ch. (N. Y.)202 ; 
 
 - High on Receivers, £ 826. Harris v. Sangston. 4 Md. Ch. Dec. 
 
 I Lting Hollister v. Barkley, 9 N. 394; Kaighn v. Fuller, 14 N. J. Eq. 
 
 II. 230; Armstrong v. Sanford, 7 419; Schoettier v. Schwarting, 17 
 
 .Minn. 19; Anderson \. Reed, 11 Iowa, Wis. 30. 
 
 177; Stevens v. Myers, 11 Iowa, 183; 4 Citing Voshell v. Hynson, 26 Md. 
 
 Taylor v. Dickinson, 15 Iowa, 483; 83 ; Drury v. Roberts, 2 Md. Ch. Dec. 
 
 Hatch v. Daniels, 5 N. J. Eq. 14; 157. 
 
 Washer v. Brown, 5 N. .1. Eq. 81 ; Suf- B Crawford v. Ross, 39 Ga. 49.
 
 § 191 ARREST OF DEFENDAN 1 . 
 
 erly executed. 1 In many cases the debtor's knowle 
 of the business peculiarly qualifies him to render valu- 
 able services to the receiver. And the receiver should be 
 served with notice and a specification of the grounds upon 
 which the removal is sought.' It may also be observed 
 that where the order appointing- a receiver was fraudu- 
 lently procured, and was subsequently annulled, the 
 receiver will be required to account for the fund intact, 
 and will not be allowed any deductions. 3 
 
 § 191. Arrest of defendant.— In New York, to authorize 
 the arrest of a defendant in an action for alleged fraudu- 
 lent disposition of his property, actual intent to defraud 
 must be clearly established. 4 Proof must be adduced of 
 an actual and guilty intent to defraud creditors. A mere 
 constructive fraud such as the law implies because an act 
 is done in violation of the statute or of the rights of the 
 creditors at common law, is not sufficient. 5 Hence an 
 order of arrest against a partner who, with knowledge of 
 the insolvency of the firm, paid individual debts with firm 
 assets, was vacated.' 5 Where there is no evidence of 
 guilty knowledge, the debtor should not be subjected to 
 arrest for acts of constructive fraud." The lex fori, as 
 we have seen, 8 governs in cases involving the question of 
 the right of arrest. 
 
 1 Ross v. Bridge, 24 How. Pr.(N.Y.) S. 311, 11 S. C. Rep. 811; Wolf v. 
 
 163. Stix, 99 U. S. I ; Eennequin v. < Hews, 
 
 * Bruns v. Stewart Mfg. Co., 31 111 U. S. 670, 4 S. C. Rep. 576; 
 
 Hun (N. Y.)197 Upshur v. Briscoe, 138 O. S 865, 11 
 
 3 O'Mahoney v. Belmont, 37 N. Y. S. C. Rep. 313. 
 
 Super. Ct. 224. s Compare Wilson v. Robertson, 21 
 
 4 Hoyt v. Godfrey, 88 N. Y. 669. N. Y. 587 ; Menagb v. Whitwell, 52 
 
 5 Sherill Roper Air Engine Co. v. N. Y. 146. 
 
 Harwood, 30 Hun (N. Y.) 11. Com- ' Sherill Roper Air Engine Co. v. 
 
 pare Neal v. Clark, 95 U. S. 704. Harwood 30 Bun (N. Y. ■ 11 
 
 Noble v. Hammond, 129 U. S. 65, 9 People v. Kelly, 35 Barb. (N 5 1 444. 
 
 S. C. Rep. 235 ; Ames v. Moir, 138 LI. 8 See ? 64.
 
 CHAPTER XIII. 
 
 REIMBURSEMENT AND SUBROGATION. 
 
 1 92. Actual and constructive fraud — 
 
 Security or reimbursement 
 of purchaser. 
 
 193. No reimbursement at law. 
 
 § 194. Void in part void in toto. 
 195 Subrogation of purchaser to 
 creditors' lien. 
 
 " The law cares very little what a fraudulent party's loss may be, and exacts nothing forhis 
 sake." — Andrews, J., in Guckenheimer v. Angevine, 81 N. Y. 397. 
 
 § 192. Actual and constructive fraud — Security or reim- 
 bursement of purchaser. —There is a plain and highly 
 important distinction to be found in the authorities 
 between actual and constructive fraud as affecting- the 
 question of repayment of the money actually advanced by 
 a purchaser. If the transaction is fraudulent in fact, or 
 tainted with moral fraud, it cannot stand even for the 
 purpose of reimbursement, 1 or indemnity ; 2 while if it is 
 only constructively fraudulent, 3 it may be upheld in favor 
 of the vendee or purchaser to the extent of securing resti- 
 tution of the amount of the actual consideration given or 
 paid by him, and only the excess of the property after 
 such payment was made will be subjected to the creditor's 
 debt. 4 When the grantee purchases without actual notice 
 
 Baldwin v. Short, 125 X. V. 559, 
 26 X E. Rep. «.»28. 
 
 Millington v. Hill, 47 Ark. 311 ; 
 Davia v. Leopold, 87N. V. 620; Shep- 
 herd v. Woodfolk, 10B. J. Lea(Tenn.) 
 598 : Alley v. Connell, ■) Bead (Tenn.) 
 582 ; Con. I,, v. Hall. 9'.' Hun (X. V.) 
 335, :'.T X. Y. Supp. Ill ; Thompson v. 
 Bickford, l9Minn 23 ; Ulen v. Berry, 
 50 Mo 90; Borland v. Walker, i Ala. 
 269 ; Loos v. Wilkinson, 118 N. V. 
 L90, 21 X. E. Rep. 392 ; W I v. Hunt. 
 
 38 Barb. (N. Y.) 302 ; Smith v. Wise, 
 132 N. Y. 172, 30 N. E. Rep. 229. 
 
 3 Lobstein v. Lehn, 20 111. App. 261. 
 See S. c. 120 111. 549, 12 N. E. Rep. 
 68 ; Loos v. Wilkinson, 113 N. Y. 491, 
 21 X. E. Rep. 392. 
 
 4 Wood v. Goffs Curator, 7 Bush 
 (Ky.) 63; Short v. Tinsley, 1 Met. 
 (Ky.) 398; Crawford v. Beard, 12 
 Ore. 458, 8 Pac. Rep. .737 ; Lobstein 
 v. Lehn, 120 111. 777 12 N.E. Rep. 68 ; 
 Cone v. Cross, 72 Md. 102, 19 Atl.
 
 §192 
 
 A.CTUAL WD CONSTRUC l'I\ T. FRAUD. 
 
 341 
 
 of the fraud, but for a consideration which is so inadequate 
 that it would be inequitable to allow the deed to stand as 
 a conveyance, a court of equity may, upon appropriate 
 allegations and proof, give it effect as a security for the 
 consideration actually paid. 1 And in cases of mere sus- 
 picious circumstances as to the adequacy of the consid- 
 eration and fairness of the transaction, the court will not 
 entirely annul the conveyance, but, on the contrary, will so 
 frame its judgment as to protect the purchaser to the 
 amount of the money advanced. 2 Again, where strangers 
 to the fraud paid off valid incumbrances upon the property, 
 they are held entitled to be reimbursed, and to be pro- 
 vided for in the decree, before the complainant's claim is 
 satisfied. 3 Where the bill in equity contains no offer to 
 restore the purchase-money, the court may extend the 
 relief conditional upon such repayment. 4 
 
 The rule is laid down by Chancellor Kent in the great 
 and leading case of Boyd v. Dunlap, 5 that a deed, fraudu- 
 
 Rep. 391. It is not necessary to offer 
 in the bill to repay the consideration ; 
 the court niay make such repayment 
 a condition for granting the relief. 
 Thomas v. Beals, 154 Mass. 51, 27 N. 
 E. Rep. 1004. 
 
 1 Van Wyck v. Baker, 16 Hun (N. 
 Y.) 171. See Clements v. Moore, 6 
 Wall. 312 ; McArthur v. Hoystradt, 11 
 Paige (N. Y.) 495; Hull v. Deering, 80 
 Md, 424, 31 Atl. Rep. 416. In Colgan 
 v. Jones,' 44 N. J. Eq. 274, 18 Atl. 
 Rep. 55, it appeared that a debtor 
 who had sustained personal injuries 
 assigned his claim for $330 to his 
 attorney, who recovered thereon a 
 judgment of $4,000. It was decided 
 that the assignment as to the excess 
 beyond a reasonable compensation to 
 the attorney for his services was void- 
 able as to the debtor's antecedent 
 creditors. 
 
 2 United States v. Griswold, 8 Fed. 
 
 Rep. 504, citing Boyd v. Dunlap. 1 
 Johns. Ch. (N. Y.) 478; Crockett v. 
 Pliinney, 33 Minn. L57, 32 X. W. Rep. 
 292. See Taylor v. Atwood, 47 Conn. 
 508 ; Oliver v. Moore, 26 Ohi< 1 St . 398 . 
 First Nat. Bank v. Bertschy, 52 Wis. 
 443, 9 N. W. Rep. 534 ; May on Fraud- 
 ulent Conveyances, p. 235. In Borden 
 v. Doughty, 42 N. J. Eq. 314, 3 Ml 
 Rep. 352, a wife was allowed to 
 recover for improvements made in 
 good faith where a deed to her was 
 set aside as being in effect voluntary 
 See Rucker v. Abell, 8 B. Mon. (Ky. 
 566; King v. Wilcox, II Paige X Y. 
 589. 
 
 b Swan v. Smith, 57 Miss. 548 
 Young v. Ward. 115 III. 264, 3 X. E 
 Rep. 512. 
 
 4 Thomas v. Beals, 151 Mass, 51 31 
 N. E. Rep. 1004. 
 
 1 Johns. Ch. (N. Y) 41
 
 342 ACTUAL AND CONSTRUCTIVE FRAUD. § 192 
 
 lent in fact, will be declared absolutely void, and not permit- 
 ted to stand as a security for any reimbursement or indem- 
 nity, and this principle is upheld and followed in many 
 cases. 1 Thus in Shand v. Hanley, 3 the vendee was not 
 allowed to absorb the value of the premises in a claim for 
 improvements made after constructive notice to her of the 
 insecurity of her title, and of the equitable lien of the cred- 
 itor. In Briggs v. Merrill, 8 Johnson, J., said: A party 
 bargaining with a debtor with fraudulent intent, " does it 
 at the peril of having that which he receives taken from 
 him by the creditors of the debtor whom he is attempting 
 to defraud, without having any remedy to recover what 
 he parts with in carrying out the bargain. 4 The learned 
 judge adds : " The law will leave him in the snare his 
 own devices have laid." The court, in Stovall v. 
 Farmers' and Merchants' Bank, 5 said that there was no 
 rule which gave a lien under a fraudulent contract. 
 Every person who enters into a fraudulent scheme for- 
 feits all right to protection 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 would be holding out inducements to engage in 
 schemes of fraud, as nothing could be lost by a failure 
 to effectuate the entire plan. Judge Spencer said he 
 presumed there was " no instance to be met with of any 
 reimbursement or indemnity afforded by a court of chan- 
 
 1 See Davis v. Leopold, 87 N. Y. Rep. 392; Baldwin v. Short, 54 Hun 
 
 620; Union Nat. Bank v. Warner, 12 (N. Y.) 473, 7 N. Y. Supp 717,affi'd 125 
 
 linn (N. Y.) 306; Wood v. Hunt, 38 N. Y. 553, 26 N. E. Rep. 928; Mande- 
 
 Barb. (N. Y.) 302 ; Briggs v. Merrill, ville v. Avery, 124 N. Y. 387, 26 N. E. 
 
 58 Barb. (N. Y.) 389; Alley v. Con- Rep. 951. 
 
 nell. 3 Head (Tenn.) 582 ; Shepherd v. 71 N. Y. 323. 
 
 Woodfolk, 10 B. J. Lea (Tenn.) 598; 3 58 Barb. (N. Y.) 389. 
 
 Millington v. Hill, 47 Ark. 311, 1 S. 4 Union Nat. Bk. v. Warner, 12 
 
 W. Rep. 547; Beidler v. Crane, 135 Hun (N. Y.) 306. 
 
 111. 92, 25 N. E. Rep. 655; Loos v. 16 Miss. 316. 
 Wilkinson, 113 N. Y. 490, 21 N. E.
 
 § 192 ACTUAL AND CONSTRUCTIVE FRAUD. 
 
 eery to a particeps criminis in a case of positive fraud." 1 
 And Judge Story remarked, in Bean v. Smith : 8 " I agree 
 to the doctrine laid down by Chancellor Kent in Boyd v. 
 Dunlap 3 and Sands v. Codwise, 4 that a deed fraudulent 
 in fact is absolutely void, and is not permitted to stand 
 as a security for any purpose of reimbursement or 
 indemnity; but it is otherwise with a deed obtained under 
 suspicious or inequitable circumstances, or which is only 
 constructively fraudulent." 5 "The loss of the amount 
 paid by a fraudulent grantee is the penalty that the law 
 inflicts for the fraudulent transaction. To refund to 
 such a grantee the amount he has paid would be to 
 destroy the penalty." 6 But while the court will not pro- 
 tect the participant in a fraud, it will not hold him liable 
 beyond the actual interest which the debtor had in the 
 property. So, it was held, that where stock was fraudu- 
 lently transferred, which was hypothecated for a valid 
 debt, the grantee was to be held liable only for the sur- 
 plus remaining, not for the nominal amount of the stock. 7 
 So disbursements for the benefit of the creditors will be 
 allowed. 8 In Baldwin v. June, 9 it was held that the 
 grantee was entitled to be credited with the value of the 
 property given in exchange for the property fraudulently 
 conveyed to him. The court cannot punish the fraudu- 
 
 1 Sands v. Codwise, 4 Johns. (N. court says: "The mortgage being 
 Y.) 598. Compare note to Lore v. void, all proceedings under it were 
 Dierkes, 16 Abb. N. C. (N. Y.) 47. void, and although he may posses- an 
 
 2 2 Mason, 296. honest claim, he cannot retain prop- 
 
 3 1 Johns. Ch. (N. Y.) 478 ; but see erty obtained by him under a fraudu- 
 Meigs v. Weller, 90 Mich. 629, 51 N. lent mortgage against a pursuing 
 W. Rep. 681. creditor." See Wcll> \. Langbein, 
 
 4 4 Johns. (N. Y.) 549. 20 Fed. Rep. 183. 
 
 5 See Henderson v. Hunton, 26 ' Hamilton Nat. Bank v. Balsted, 
 Gratt. (Va.) 935 ; Coiron v. Millaudon, 134 N. Y. 520, 31 N. E. Rep. '.mid. 
 
 19 How. 115; Brown v. Chubb, 135 8 Loos v. Wilkinson, 118 N. Y. 185, 
 
 N. Y. 174, 31 N. E. Rep. 1030. 21 N. E. Rep. 392. 
 
 6 See Seivers v. Dickover, 101 Ind. fl 68 Hun (N. Y | 284, 32 N. Y. 
 495, 498. In Mandeville v. Avery Supp. 852. 
 
 (124 N. Y. 387, 26 N. E. Rep. 951), the
 
 344 ACTUAL AND CONSTRUCTIVE FRAUD. § 1 92 
 
 lent vendee by ordering judgment in excess of the value 
 of the interest transferred. 1 
 
 It may be here observed that there seems to be author- 
 ity for the proposition that loss resulting from depreciation 
 may be apportioned between the debtor and the grantee, 
 according to the sums respectively invested, 2 when the 
 conveyance is attacked by creditors. Thus in Shaeffer v. 
 Fithian, 3 an insolvent purchased real estate for his wife 
 taking the title in her name, and advancing $2,460 of the 
 consideration, the wife paying the balance of $4,000. 
 The court ordered a sale of the property, and directed 
 that twenty-four-hundred-and-sixty sixty-four-hundred-and- 
 sixtieths of the proceeds of sale be applied in payment 
 of the complainant's debt. The court, after observing 
 that they could see no error in this decree to the preju- 
 dice of the wife, said : " She might well have been 
 regarded as the sole owner of the property, and the 
 quasi debtor of her husband. As such, she would be 
 bound to bear the whole loss arising from depreciation 
 of the property. The court below seems, however, to 
 have considered the husband's interest as a kind of result- 
 ing trust in the property, making him in equity a tenant 
 in common. This was certainly the most favorable view 
 in behalf of the wife that could have been taken of the 
 case. It results in saddling the loss arising from depre- 
 ciation pro rata upon both parties." In Karstorp's 
 Estate, 4 the debtor and his wife had both contributed 
 toward the purchase of the property about to be sold, 
 and the relief extended to the husband's creditor was 
 limited to the amount contributed by the debtor toward 
 the purchase with interest. The Supreme Court of Mis- 
 souri say, in Alien v. Berry, 5 that there is no principle 
 
 1 Hiiiiiiltoii Nat. Bk. v. Halsted, 3 26 Ohio St. 282. 
 i:,l N. Y. 520, 31 N. E. Hep. 900. « 158 Pa. St. 30, 27 Atl. Rep. 739. 
 
 Shaeffer v. Fithian, 26 Ohio St. 282. 6 50 Mo. 91.
 
 § 193 N0 REIMBURSEMENT AT LAW. 345 
 
 of equity which allows a fraudulent grantee to offset 
 against the value of the property the amount he may 
 have paid for it. "The fraud," observes Adams, [., 
 " renders the deeds absolutely void as to creditors, and 
 the plaintiff, who was a creditor, and as such became the 
 purchaser, is entitled to recover the property and its 
 rents, etc., as though no such fraudulent deeds ever had 
 been made." Allowing the vendee to recover back the 
 money would be in effect repaying him the amount which 
 he expended in accomplishing the very thing which the 
 law prohibits and condemns. As it was a wrong in him 
 to obtain the title and the possession for a fraudulent 
 purpose, it must be equally wrong to refund to him the 
 price paid for it. 1 But where a mortgagor conveyed to 
 the mortgagee in payment of the mortgage, and the con- 
 veyance was set aside, it was considered that the mort- 
 gage was in force as to the creditors. 3 In part, the 
 theory of not allowing the fraudulent grantee any relief 
 for partial consideration or necessary outlay, as regards 
 the avoided transaction, is that the rights of creditors 
 would be impaired by such allowance. Creditors might 
 have seized the property intact but for the wrongful 
 alienation. But equity sometimes hesitates, and, in its 
 desire to do equity, evinces an inclination to allow the 
 alienee for any consideration or outlays which the cred- 
 itors could not have escaped paying. 3 
 
 § 193. No reimbursement at law. — While a court of 
 equity, in setting aside a deed of a purchaser upon 
 grounds other than those of positive fraud, annuls it 
 
 'McLean v. Letchford, 60 Miss. 520, 31 N. E. Rep. 900. Compare 
 
 183. Loos v. Wilkinson, 113 X. Y. 485, 31 
 
 2 Irish v. Clayes, 10 Vt. 81. N. E. Rep. 392 ; Stevens v. Brennan, 
 
 3 See Baldwin v. June, 68 Hun (N. 79 N. Y. 254; Clift v. Moses, 75 Bun 
 Y.) 286,22 N. Y. Supp. 852; Hamil- (N. Y.) 520, 27 N. Y. Supp. 
 
 ton Nat. Bk. v. Halsted, 134 N. Y. Clements v. Moore, 6 Wall. 312.
 
 346 
 
 NO REIMBURSEMENT AT LAW. 
 
 T 93 
 
 upon terms, and requires a return of the purchase-money, 
 or directs that the conveyance stand as a security for its 
 repayment, this principle has no place as applied to an 
 action at law. This constitutes one of the essential dif- 
 ferences already discussed 1 between relief in equity and 
 the judgment extended by a court of law. The latter 
 court, as we have said, can hold no middle course. The 
 entire claim of each party must rest and be determined 
 at law upon the single point as to the validity of the 
 deed ; but it is the ordinary case in the former court to 
 decree that a deed not absolutely void, yet, under the 
 circumstances, inequitable as between the parties, may be 
 set aside upon terms. 2 
 
 1 See Chapter III. S£ 51, 60 ; Foster 
 v. Foster, 56 Vt. 540. 
 
 - Coiron v. Millaudon, 19 How. 115. 
 See Clark v. Krause, 2 Mackey (D. C.) 
 574 ; Drury v. Cross, 7 Wall. 299 ; 
 Worthington v. Bullitt, 6 Md. 172. 
 
 Flexible jurisdiction of equity. — In 
 Clements v. Moore, 6 Wall. 312, a case 
 which we have frequently quoted and 
 cited, the court said : " A sale may be 
 void for bad faith, though the buyer 
 pays the full value of the property 
 bought. This is the consequence, 
 where his purpose is to aid the seller 
 in perpetrating a fraud upon his cred- 
 itors, and where he buys recklessly, 
 with guilty knowledge. When the 
 fact of fraud is established in a suit 
 ;it law, the buyer loses the property 
 without reference to the amount or 
 application of what he has paid, and 
 he can have no relief either at law or 
 in equity. When the proceeding is 
 in chancery, the jurisdiction exercised 
 L8 more flexible and tolerant. The 
 equity appealed to, while it scans the 
 transaction with the severest scrutiny, 
 looks at all the facts, and giving to 
 each one its due weight, deals with 
 the subject before it according to its 
 
 own ideas of right and justice. In 
 some instances, it visits the buyer 
 with the same consequences which 
 would have followed in an action at 
 law. In others, it allows a security 
 to stand for the amount advanced 
 upon it. In others, it compels the 
 buyer to account only for the differ- 
 ence between the under price which 
 he paid and the value of the property. 
 In others, although he may have paid 
 the full value, and the property may 
 have passed beyond the reach of the 
 process of the court, it regards him as 
 a trustee, and charges him accord- 
 ingly. Where he has honestly ap- 
 plied the property to the liabilities of 
 the seller, it may hold him excused 
 from further responsibility. TJie car- 
 dinal principle in all such cases is, 
 thai Hi* property of the debtor shall 
 not be diverted from the payment of 
 his debts to the injury of his creditors. 
 by means of I In' fraud." See Tomp- 
 kins v. Sprout, 55 Cal. 36; Clif t v. 
 Moses, 75 Hun ( X. Y. | 520. A grantee 
 may be allowed for improvements. 
 King v. Wilcox, 11 Paige (N. Y.) 589 ; 
 see Sliand v. Hanley, 71 N. Y. 319, 
 and the amount of incumbrances
 
 § 194 VOID IN PART VOID IN TOTO. 
 
 § 194. Void in part void in toto. — As a general rule, a 
 transaction void in part for any cause is entirely void. 1 
 Russell v. Winne'~ is an illustration of our meaning. In 
 that case the question presented was whether a mortgage 
 which was fraudulent against creditors as to a part of 
 the property mortgaged, could be upheld as to the 
 residue. The court decided that as the mortgage was a 
 single instrument, given to secure one debt, to render it 
 valid it must have been given in good faith, for the 
 honest purpose of securing the debt, and without any 
 intent to hinder or defraud creditors. Grover, J., con- 
 tinuing, said: "This cannot be true when the object, in 
 part, or as to part of the property, is to defraud creditors. 
 This unlawful design vitiates the entire instrument. The 
 unlawful design of the parties cannot be confined to one 
 particular parcel of the property. Entire honesty and 
 good faith is necessary to render it valid ; and whenever 
 it indisputably appears that one object was to defraud 
 creditors to any extent, the entire instrument is, in judg- 
 ment of law, void." 3 It is different where the instru- 
 ment is given to secure separate debts, some of which 
 are valid, and others fraudulent. In that case it will be 
 sustained as to the former. 4 The rule, as we have seen, 
 
 satisfied by the vendee may be al- win v. Short. 125 X. Y. 553, 26 N. E. 
 
 lowed. Potter v. Gracie, 58 Ala. 303. Rep. 928. 
 
 So, when a conveyance is annulled, a - 37 N. Y. 591, 596. See Showman 
 
 mortgage in favor of a trust may be v. Lee, 86 Mich. 560, 49 N. W. Rep, 
 
 validated. First Nat. Bank v. Cum- 578. 
 
 mins, 39 N. J. Eq. 577. Compare $ Baldwin v. Short, 125 N. J 
 
 Murphy v. Briggs, 89 N Y. 446. 26 N. E. Rep. 928. 
 
 'National Bank v. Barkalow, 53 4 Rider v. Hunt, 6 Tex. Civ. *.pp 
 
 Kan. 68,35 Pac. Rep. 796; Bank v. 238,25 S. W. Hep- 314. See Morris 
 
 Brier, 95 Tenn. 331, 32 S. W. Rep. v. Lindauer, 4 C. C. A 163, VI Fed. 
 
 205; State v. Hope. 102 Mo. 410, 14 S. Rep. 23; Ruffner v. Welton Coal .V 
 
 W. Rep. 985 ; Brasher v. Jamison, 75 S. Co., 36 W. Va. 244, I ■"> S E. 
 
 Tex. 140, 12 S. W. Rep. 809; Roberts Rep. 48; Gordon v. Cannon, 18 Gratl 
 
 v. Vietor, 130 N. Y. 600, 29 N. E. Rep. (Va.) 423 ; Riggan v. Wolf, 58 \rk 
 
 1025 ; Hangen v. Hachemeister, 114 538, 14 S. W. Rep. 922 Teffl v. Stern, 
 
 N. Y. 570, 21 N. E. Rep. 1046 ; Bald- 73 Fed. Rep. 591.
 
 348 SUBROGATION OF PURCHASER. § IQ5 
 
 applies only where there is actual fraud. In cases where 
 the fraud is constructive only, the court will uphold the 
 valid provisions of the instrument, if it can be done with- 
 out defeating the general intent. 1 
 
 § 195. Subrogation of purchaser to creditors' lien. — The 
 doctrine of subrogation is founded upon principles of 
 equity and benevolence, and it may be decreed where no 
 contract or privity of any kind exists between the parties. 2 
 The rieht of subrogation is not founded on contract. It 
 is a creature of equity ; is enforced solely for the purpose 
 of accomplishing the ends of substantial justice ; and is 
 independent of any contractual relations between the par- 
 ties. 3 In Lidderdale v. Robinson, 4 Chief-Justice Mar- 
 shall said : " Where a person has paid money for which 
 others were responsible, the equitable claim which such 
 payment gives him on those who were so responsible, shall 
 be clothed with the legal garb with which the contract he 
 has discharged was invested, and he shall be substituted, 
 to every equitable intent and purpose, in the place of the 
 creditor whose claim he has discharged." 5 It may be 
 noted that the party seeking subrogation must come into 
 
 1 Peters v. Bain, 133 U. S. 670, 10 the principal debtor has given to his 
 
 S. C. Rep. 354 ; Hayes v. Westcott, 91 surety, endorser or guaran tor any por- 
 
 Ala. 143. 8 So. Rep. 337 ; Cunning- tion of his estate as a protection 
 
 ham v. Norton, 125 U. S. 77, 8 S. C. against liability, and both become in- 
 
 Rep. 804 ; Muller v. Norton, 132 U. S. solvent, the creditor is entitled to be 
 
 501, 10 S. C. Rep. 147. subrogated to the rights of such 
 
 ' Cottrell's Appeal, 23 Pa. St. 294. surety, guarantor or endorser, and 
 
 Compare Graff's Estate, 139 Pa. St. to claim directly, and not through 
 
 70, 21 Atl. Rep. 233 : Pease v. Egan, the representative of such surety, 
 
 L31 N. Y. 272, 30 N. E. Rep. 102. guarantor or endorser, tbe application 
 
 ; Memphis, & L. R. R. v. Dow, to the discharge of his claim of all 
 
 120 U. S. 301, 7 S. C. Rep. 482; Pease such assets." Whittaker v. Amwell 
 
 v. Egan, 131 N. Y. 272, 30 N. E. Rep. Nat. Bank. 52 N. J. Eq. 418, 20 Atl. 
 
 102. See Gans v. Thieme, 93 N. Y. Rep. 203 ; New Bedford Inst, for Sav- 
 
 225. ings v. Fairhaven Bk., 9 Allen 
 
 * 2 Brock. 168. See Pease v. Egan, (Mass.) 175; Aldrich v. Blake, 134 
 
 131 N. Y. 272, 30 N. E. Rep. 102. Mass. 585. 
 "It is also safe to say that when
 
 § 195 SURROGATION OF PURCHASER. ;.,,, 
 
 court with clean hands. 1 The court will not protect a 
 fraudulent party from loss. 3 This doctrine of subrogation 
 is frequently invoked in cases where fraudulent convey- 
 ances are annulled. Thus, in Selleck v. Phelps,' 3 it was 
 said that a person who acquired the title to property under 
 circumstances which enabled the creditors of the vendor 
 to avoid the sale, whether he be a purchaser or a volun- 
 tary grantee, would, after the payment of the claims of 
 attaching creditors, be subrogated to their rights so as to 
 enable him to hold the property against subsequent 
 attachments. 4 Where goods were fraudulently conveyed, 
 but promptly seized by the creditors, and sold by them, 
 it was held that the fraudulent vendee should not be 
 charged a greater sum than was realized upon the sale, 
 and that he was entitled to a lien upon the proceeds of 
 sale for the amount of a bona fide debt paid by the debtor 
 out of the price given by the vendee. 5 The right of sub- 
 rogation was recognized in Cole v. Malcolm. It appeared 
 that one Crawford conveyed real estate to his wife with 
 intent to defraud creditors Subsequently his wife died 
 intestate and her heirs assigned the property to the 
 defendant. One of Crawford's creditors then entered a 
 judgment against him, and subsequently secured a decree 
 setting: aside the convevance. The defendant then 
 tendered the judgment-creditor the amount due him and 
 
 1 Wilkinson v. Babbitt, 4 Dili. 207: 4 See Sheldonon Subrogation, . I". 
 
 Railroad Co. v. Soutter, 13 Wall. 517 ; Compare Acker v. White, 35 Wend. 
 
 Griffith v. Townley, 69 Mo. 13. The (N. Y.) 614 ; Tompkins v. Sprout, 55 
 
 doctrine of equitable subrogation will Cal. 31; Merrell v. Johnson. 96 111. 
 
 not be applied to relieve a party from 224. 
 
 a loss occasioned by his own unlaw- 5 Flash v. Wilkerson, 20 Fed. Rep. 
 
 ful act. Guckenheimer v. Angevine, 257. Compare note i>> Lore v. Dierkes, 
 
 81 N. Y. 394; Kley v. Healy, 127 N. 16 Abb. N. C. (N. Y.) 17. 
 
 Y. 561, 28 N. E. Rep. 593. 6 66 N. Y. 363 : overruling the court 
 
 " Guckenheimer v. Angevine, 81 below, 7 Hun (N. Y.) 31. See Pease ^ 
 
 N. Y. 394; Masson v. Bovet, 1 Denio Egan, 131 N. Y. 262, ::<» N. E. Rep. 
 
 (N. Y.) 74. 102. 
 
 3 11 Wis. 380.
 
 350 SUBROGATION OF PURCHASER. § I95 
 
 demanded an assignment of the judgment against Craw- 
 ford. The court held that, under such circumstances, 
 upon payment of the judgment, which he was obliged to 
 satisfy in order to save his land from sale, the principles 
 of justice and equity required that he should be subro- 
 gated to all the rights and securities of the judgment- 
 creditor, especially as the latter had, when his judgments 
 were paid, secured everything to which he was entitled. 1 
 So then, again, the tendency of the court to prevent a 
 merger where injustice would result, has been applied to 
 cases of this character. Thus, in Crosby v. Taylor, 2 it 
 appeared that a grantee of land held it by a deed which 
 was fraudulent as against the grantor's creditors. By a 
 subsequent deed the grantee secured from a prior mort- 
 gagee a deed of quitclaim of all the latter's interest in 
 the premises, containing this clause, "which said mort- 
 gage is hereby canceled and discharged." The court held 
 that the deed constituted an assignment of the mortgage, 
 and did not operate by way of merger of it as against the 
 grantor's creditors. 
 
 A fraudulent vendee may create a valid lien upon the 
 property in favor of a mortgagee in good faith. 3 
 
 1 See Snelling v. Mclntyre, 6 Abb. N. J. Eq. 577; Munoz v. Wilson, 111 
 
 N. C. (N. Y.) 471. Compare Robin N. Y. 305, 18 N. E. Rep. 855; Royer 
 
 son v. Stewart, 10 N. Y. 190. Wheel Co. v. Frost, 13 Daly (N. Y.) 
 
 8 15 Gray (Mass.) 64. 233 ; Martin v. Bowen, 51 N. J. Eq. 
 
 Murphy v. Briggs, 89 N. Y. 446; 464, 26 Atl. Rep. 823. 
 First National Bank v. Cummins, 39
 
 CHAPTER XIV. 
 
 INTENTION. 
 
 §196. What is intention? S 201. Of intention vsrhere considera- 
 
 197. Actual intent not decisive. tion is adequate. 
 
 198. Fraud of agent binding upon 
 
 principal. 
 
 199. Mutuality of participation in 
 
 fraudulent intent. 
 
 202. Intention to defraud subsequenl 
 
 creditors. 
 
 203. When question of intenl res 
 
 ad judicata. 
 
 200. Intent affecting voluntary alien- 1 204. Intent a question for the jury. 
 ations. 2Q~). Testifying as to intent. 
 
 206. Proving intent. 
 
 " The intent is seldom disclosed on the face of the transaction." — Andrews, Ch. J., in Beuerlitn 
 v. O'Leary, 149 N. Y. 38, 43 N. E. Rep. 417. 
 
 "The vital question is always the good faith of the transaction." Mr. Justice Swayne in 
 Lloyd v. Fulton, 91 U. S. 485. 
 
 " The mental emotion is inferred from the facts." - Finch, J., in Higgins v. Crouse, 147 X. Y 
 415, 42 N. E. Rep. 6. 
 
 " Where there is an actual intent to defraud, no form in which the transaction is put can shield 
 the property so transferred from the claims of creditors." — Chief Judge Ruger in Hillings v. 
 Russell, 101 N. Y. 226, 234. 
 
 § 196. What is intention? — Further time cannot be 
 devoted to the discussion of the practical details of pro- 
 cedure in creditors' suits and proceedings. Let us n< 
 direct attention to a more complete consideration of the 
 general principles and theories of law which these various 
 remedies are devised to render effectual under the statute 
 of Elizabeth. The rules of evidence commonly invoked 
 in these proceedings which, as will appear, constitute a 
 most important branch of the subject, will then be noticed 
 in a very general way. 
 
 First, what is the fraudulent intent under the statute 
 of Elizabeth which must ordinarily exist, and be found 
 as a fact, 1 to enable a creditor to defeat the debtor's 
 alienation? 2 Sutherland, J., in Babcock v. Eckler, 
 
 1 Sickman v. Wilhelrn, 130 Ind. 481, See Knox v. Moses, 104 Cal. 502 
 29 N. E. Rep. 908. Pac. Eep. 318. 
 
 2 Harrnan v. Hoskins, 56 Miss. 142. :: 2I N\ Y. 632. S. P., Snyder v. 
 
 Free, 114 Mo. 376, 21 8. W. Re]
 
 352 WHAT IS INTENTION. § 196 
 
 case already cited, used these words: "Intent or inten- 
 tion is an emotion or operation of the mind, and can 
 usually be shown only by acts or declarations ; and, as 
 acts speak louder than words, if a party does an act which 
 must defraud another, his declaring that he did not by 
 the act intend to defraud is weighed down by the evi- 
 dence of his own act." 1 Fraud, it must be noted, does 
 not consist in mere intention, but in intention acted out, 
 or made effectual by hurtful acts, 2 in conduct that operates 
 prejudicially upon the rights of others, and which was so 
 intended. 3 A fraudulent purpose is an important ele- 
 ment in the case, but it is not the only essential requisite ; 
 there must be superadded to it, besides the sale or trans- 
 fer, actual fraud, hindrance, or delay resulting therefrom 
 to the creditors. 4 While it may possibly be true that the 
 impressions, emotions, or operations of the mind are 
 never effaced, yet they can be reproduced only by the 
 person whose mind gave them birth. Their true nature 
 can only be determined or guessed at by other persons 
 from the color of the outward acts which the emotions 
 inspired ; from their nature, connection and effect. 5 
 
 1 See Newman v. Cordell, 43 Barb. erty so transferred from the claims of 
 
 (N. Y.i 156; Monteith v. Bax, 4 Neb. creditors, even though a full and ade- 
 
 171 ; Snyder v. Free, 114 Mo. 361, 21 quate consideration be received for 
 
 S. W. Rep. 847; Booth v. Carstar- the same." Billings v. Russell, 101 
 
 phen, 107 X. ('. 395, 12 S. E. Rep. 375. N. Y. 226, 234, 4 N. E. Rep. 531. In 
 
 2 See§ i:s. Learned, P. J., said in People v. Cook, 8 N. Y. 67, 79, Willard, 
 
 Billings v. Billings, 31 Hun (N. Y.) J. .said: "Fraud can never, in judi- 
 
 65, 69: "There must be not only the cial proceedings, be predicated of a 
 
 intent, but the intent must be so mere emotion of the mind, discon- 
 
 carried out thai some creditors are uected from an acl occasioning an 
 
 actually hindered, delayed, or de- injury to some one." See Masterton 
 
 frauded \ conveyance is v. Beers. 1 Sweeny (N. Y.) 419. 
 
 made with fraudulent intent (inly as ' Bunn v. Ahl, 29 Pa. St. 390. Com- 
 
 to those who are in fact defrauded." pare Smith v. Smith, 21 Pa. St. 370 ; 
 
 This case was reversed, and the court Worthy v. Brady, 91 N. * '. 269. 
 
 says: "Where there is an actual in- 4 Rice v. Perry, (51 Me. 150. 
 
 tent to defraud, no form in which the Booth v. Carstarphen, 107 N. 0. 
 
 transaction is put can shield the prop- 395, 12 S. E. Rep. 375.
 
 § 196 WHAT IS INTENTION. J53 
 
 Hence the court, as we have shown, will not be con- 
 cluded by the statement of the debtor's mental opera- 
 tions, for he is usually an interested party ; nor will it 
 accept his standard of morality as its test. In Potter v. 
 McDowell, 1 this language is used : "When a voluntary 
 deed is made by a debtor in embarrassed circumstances, 
 and a question arises as to its validity, in order to ren- 
 der the deed fraudulent in law as to existing creditors, it 
 is not necessary to show that the debtor contemplated 
 a fraud in making it, or that it was an immoral or corrupt 
 
 act The law does not concern itself about 
 
 the private or secret motives which may influence the 
 debtor;" he may believe he had the right to make it, and 
 that it was his duty to do it, yet if the deed is voluntary, 
 and hinders and delays his creditors, it is fraudulent. It 
 may be observed here that a conveyance is fraudulent if 
 the grantor meant to hinder or defraud any of his cred- 
 itors, and a charge conveying the idea that he must have 
 meant to defraud all his creditors is misleading." Also 
 that it is not necessary to show that the fraudulent intent 
 constituted the sole purpose, but only that it constituted 
 a part of the purpose and design with which the scheme 
 was entered into ; if it is a part of the scheme to hinder 
 or delay creditors, the whole transaction is void. H "The 
 intent is the essential and poisonous element in the 
 transaction." 4 The court will discriminate and frame 
 its decree accordingly. Hence a mortgage made to two 
 creditors may be sustained as to an innocent mortgagee 
 
 ■31 Mo. G9. See White v. Mc- 2 Allen v. Kinyon, 41 Mich. 2 
 
 Pheeters, 75 Mo. 294. In Wartman v. 'Manning v. Reilly, 16 Weekly 
 
 Wartman, Taney's Dec. 370, Chief- Dig. (N. Y.) 230; Boll v. Creamer, 
 
 Justice Taney said : ,; As regards the 34 X. J. Eq. 181 ; Russell v. Winne, 
 
 question, whether a contempt has or 37 X. Y. 596, and cases cited ; Mead 
 
 has not been committed, it does not v. Combs, 19 X. ■). Eq. 112. 
 
 depend on the intention of the party, ' M 'e v. Hinnant, 89 N. C. 155, 
 
 but upon the act he has done." See 459; Worth} v. Brady, 91 X. C. 269; 
 
 Cartwright's Case, 114 Mass. 239. Hollister v. Loud, 2 Mich. 309. 
 
 23
 
 354 
 
 ACTUAL INTENT NOT DECISIVE. 
 
 I 9 7 
 
 and avoided as to a fraudulent mortgagee. 1 It must be 
 borne in mind that an intent to hinder, delay, or defraud, 
 is sufficient to avoid the sale ; 2 it is not essential to show 
 a union of these elements, though it must be conceded 
 that it is not always an easy task to distinguish between 
 an intent to hinder and an intent to delay. 3 It is con- 
 sidered in Massachusetts that knowledge of the fraudu- 
 lent intent does not itself constitute participation in it. 4 
 The statute against fraudulent conveyances is aimed at 
 the intent of the debtor, not the fraudulent intent of the 
 grantee practiced upon a debtor, to procure a convey- 
 ance by unfair means. 5 
 
 § 197. Actual intent not decisive. — The question of the 
 donor's actual intent is not then necessarily decisive. 6 
 A man may give his property to his wife or children in 
 the belief that he has the right to do so, but if by so 
 doing his existing creditors are hindered or delayed, the 
 
 1 Riggan v. Wolf, 5:3 Ark. 537, 14 
 S. W. Rep. 922. 
 
 2 See § 11. 
 
 3 Rupe v. Alkire, 77 Mo. 642. See 
 Burgert v. Borchert, 59 Mo. 83. See 
 Weber v. Mick, 131 111. 520, 23 N. E. 
 Rep. 646. 
 
 4 Can- v. Briggs, 156 Mass. 80, 30 
 N. E. Rep. 470; Banfield v. Whipple 
 II Allen (Mass.) 13. 
 
 'Parker v. Roberts, 116 Mo. 657, 
 22 S. W. Rep. 914. In Morton v. Mor- 
 ris, 36 U. S. App. 55(), 560, the court 
 says : "The intent which actuates a 
 creditor in seeking to enforce a legal 
 claim or demand i- ordinarily of no 
 concern to the debtor, and is not a 
 matter for judicial inquiry ; t he debtor 
 1- only entitled to complain when 
 some acl is done <>r threatened by the 
 creditor which is in itself unlawful, 
 orisconl rary to equity. In the present 
 case, the acts charged in tit** answer 
 bhe basis foi relief consisted in a 
 
 demand made by the plaintiff for an 
 accounting and settlement when the 
 defendant was in embarrassed cir- 
 cumstances, and in a threat to enforce 
 such demand by a civil action. Neither 
 of these acts was unlawful, or so far 
 harsh, oppressive or unconscionable 
 as to vitiate the settlement subse- 
 quently made. Silliman v. United 
 States, 101 U. S. 465; Hackley v. 
 Headley, 45 Mich. 569 ; Snyder v. 
 Braden, 58Ind. 143 ; Dunham v. Gris- 
 wold, 100 N. Y. 224 ; Fuller v. Roberts, 
 35Fla. 110; McClairv. Wilson, 18 Col. 
 82; Farmer v. Walter, 2 Edw. Ch. 
 ( X. Y.) 601 ; Skeate v. Beale, 11 Ad. 
 & El. 983; Wilcox v. Howland, 23 
 Pick. (Mass.) 167." 
 
 ■ ; Haas v. Sternbach, 156 111. 54, 
 41 N. E. Rep. 51 ; Lawson v. Funk, 
 108 111. 502; Brisco v. Norris, 112 N. 
 C. 676, 16 S. E. Rep. 850; Marks v. 
 Bradley. 69 Miss. 1, 10 So. Rep. 922.
 
 § 197 ACTUAL INTEN r NO! DECISIVE. 
 
 transaction is wrongful, and the conveyance will be set 
 aside. 1 In McKeown v. Allen, 2 the court says: " Hie 
 defendants deny that their intention was to defraud, hin- 
 der or delay creditors, in the execution of the convey- 
 ance between them. Such hindrance and delay of the 
 complainant, however, has clearly been the result of the 
 conveyance. Where such has been the effect of the con- 
 veyance, the real motives of the parties thereto are 
 immaterial." 3 In Briggs v. Mitchell, ' the court said: 
 "The property conveyed to the wife so far exceeds in 
 value the amount of the money which it was conveyed to 
 secure, it is of itself sufficient to authorize the holding 
 that the conveyance was fraudulent as against antecedent 
 creditors, without the finding of actual or meditat<<l 
 fraud." The inference of fraud may arise despite an 
 honest intent. 5 In Lukins v. Aird,' 1 Davis, J., said : " It 
 is not important to inquire whether, as matter of fact, the 
 defendants had a purpose to defraud the creditors of 
 Aird, for the fraud in this case is an inference of law, on 
 which the court is as much bound to pronounce the con- 
 veyance in question void as to creditors, as if the fraudu- 
 lent intent were directly proved." " An act innocent in 
 the intention may be so injurious in the consequences, 
 that the law declares it to be a fraud and forbids it." 
 An assignment which delays certain creditors is void. 
 
 'Winchester v. Charter, 97 Mass. s 6 Wall. 79; Sukeforth v. Lord, 81 
 
 140; Potter v. McDowell, 31 Mo. 62 ; Cal. 400,25 Pac. Rep. 497; Wolf v. 
 
 Patten v. Casey, 57 Mo. 118 ; Marmot) Arthur, 118 N. < ' s '» s . -'I S. E, Rep. 
 
 v. Harwood, 124 111. 104, 16 N. E. 671. 
 
 Rep.236. See Chaps. V., VI. ' Kisterbock's Appeal, 51 P 
 
 2 37 Fla. 497, 20 So. Rep. 556. 485. Compare Lawson v. Funk 
 
 3 Citing Marmon v. Harwood. 124 111. 507; Personette v. Cronkbite, it" 
 111. 104, 16 N. E. Rep. 236. Ind. 586, l<> X. E. Rep th v. 
 
 4 60 Barb. (N. Y.) 316. Caxstarpben, in? N. C. 895, 12 - 
 
 5 Coleman v. Burr, 93 N. Y. 17: Rep. 375; Sutherland v. Bradner. 116 
 Roberts v. Vietor, 130 N. Y. 600, 29 N. Y. 410, 22 N. E. Rep. 554 ; Cou 
 
 N. E. Rep. 1025 ; Sutherland v. Brad- v. Morton. 132 N. V. 556, 8 
 
 ner, 116 N. Y. 410, 22 N. E. Rep. 554. Rep. 231.
 
 356 FRAUD OF AGENT. § I98 
 
 though no fraud was intended by the assignor or 
 assignee. 1 A different doctrine seems to be recognized 
 in Minnesota. An actual corrupt and dishonest design 
 or purpose seems to be required. ~ That the debtor 
 made the conveyance to avoid the plaintiff's claim 
 because he did not believe it to be just will not sustain 
 the transfer. 3 This subject has already been discussed. 4 
 
 § 198. Fraud of agent binding upon principal. — Warner 
 v. Warren, 5 establishes the principle that actual fraudu- 
 lent intent, sufficient to avoid a transfer, need not be 
 personal to the debtor. In this case a husband obtained 
 a power of attorney from his wife authorizing him to 
 transact business as her agent. By means of false state- 
 ments he established a fictitious credit for her, incurred 
 liabilites in her name, and then induced the wife to make 
 an assignment. The wife was a guileless, artless woman, 
 who took no part in the business, and intended to com- 
 mit no wrong, but was a mere passive instrument in the 
 hands of her husband, by whom the frauds were perpe- 
 trated. In avoiding the assignment, in favor of an 
 attaching-creditor, Grover, J., said that the husband's 
 " objects became hers ; his frauds were her frauds ; and 
 she is responsible therefor, however destitute of any 
 knowledge thereof." This case is a valuable precedent, 
 showing that intent may be established by implication or 
 substitution, and that mental operation or emotion is not 
 necessarily the test. 
 
 1 Sutherland v. Bradner, 116 X. V. N. Y. Superior, 95; affi'd 62 N. Y. 
 
 no, 22 N. 1:. Rep. 554. See Chap. 535. 
 
 XXI * See § 8. In Trumbull v. Hewitt, 
 
 In re Shotwell, 43 Minn. 339, 15 <i~> Conn. 60, 31 Atl. Rep. 492, the doc- 
 
 N. W. Rep. 843. trine of Warner v. Warren, 46 N. Y. 
 
 Barrefl v. Nealon, 119 Pa. St. 171, 228, is applied to a case where a con- 
 
 1\! Atl. Rep. 861. veyance was made by the husband to 
 
 \ 9, !<). his wife for a valuable consideration, 
 
 Hi X. Y. 228 , Wicks v. Eatch, 38 and without knowledge or fraudulent
 
 i 9 9 
 
 PARTICIPATION l\ FRAUDULEN1 l\i 
 
 $57 
 
 Incidentally it may be noted that there must be clear 
 proof that the knowledge or notice was present in the 
 mind of the agent at the time of the transaction in ques- 
 tion in order to charge the principal. 1 
 
 § 199. Mutuality of participation in fraudulent intent. 
 Generally speaking, to render a conveyance fraudulent 
 and voidable as against creditors, there must have been 
 mutuality of participation in the fraudulent intent, on the 
 part of both the vendor and the purchaser." 
 
 intent on her part, on the ground that 
 the facts showed that, in the transac- 
 tion, the husband acted not merely as 
 gi-antor, but as agent for his wife, 
 and therefore his fraud was held to 
 be imputable to her. See also Smith 
 v. Water Commrs. of Norwich, 38 
 Conn. 208 ; O'Connell v. Kilpatrick, 
 64 Md. 130, *21 Atl. Rep. 98. 
 
 1 See Constant v. University of 
 Rochester, 111 N. Y. 604, 19 N. E. 
 Rep. 631 ; Hall v. Germain, 131 N. Y. 
 536, 30 N. E. Rep. 591 ; Slattery v. 
 Schwannecke, 118 N. Y. 543, 23 N. E. 
 Rep. 922 ; Denton v. Ontario County 
 Nat. Bank, 150 N. Y. 137, 44 N. E. 
 Rep. 781. 
 
 2 Curtis, v. Valiton, 3 Mont. 157; 
 Mehlhop v. Pettibone, 54 Wis. 652, 
 11 N. W. Rep. 553, 12 Id. 443 ; Hall 
 v. Arnold, 15 Barb. (N. Y.) 600 ; Wil- 
 son v. Prewett, 3 Woods 635 ; Hop- 
 kins v. Langton, 30 Wis. 379 ; Steele 
 v. Ward, 25 Iowa 535 ; Schroeder v. 
 Walsh, 120 111. 403, 11 N. E. Rep. 70 ; 
 Miller v. Bryan 3 Iowa 58 ; Chase v. 
 Walters, 28 Iowa 460 ; Kittredge v. 
 Sumner, 11 Pick. (Mass.) 50; McCor- 
 mick v. Hyatt, 33 Ind. 546 ; Cooke v. 
 Cooke, 43 Md. 522, 525; Fifield 
 v. Gaston, 12 Iowa 218 ; Preston v. 
 Turner, 36 Iowa 671 ; Drummond 
 v. Couse, 39 Iowa, 442 ; Kellogg v. 
 Aherin, 48 Iowa, 299 ; Rea v. Missouri. 
 17 Wall. 543 ; Demarest v. House, 91 
 
 Hun (N. Y.)29(), 36 X. Y. Supp. 291 : 
 Wolf v. Arthur, lis \. fj. 898, 24 S. 
 E. Rep. 671; Jackson v. Glaze, •". Okl. 
 143.41 Pac. Rep. 79; Schram v. Tay- 
 lor. 51 Kan 552,33 Pac. Rep. 315; Wil- 
 son v. Spear, OS Vt. 1 15, ::i Atl. Rep. 
 429; First Nat. Bk. v. Hamilton, 59 
 N. V. St. Rep. 331 ; Salmi v. Colum- 
 bia Fuel Co., '25 Ore. 1.".. Ml Pac. Rep. 
 692; Tolman v. War. I, 86 Me. 
 Atl. Rep. 1081 ; Stevens Lumber Co. 
 v. Kansas City Planing Mill Co., 
 59 .Mo. App. :;?:!; Uberger v. 
 Whit.'. 117 Mo. 347, 23 S. W. Rep. 
 92; The State v. Mason, 112 Mo. 
 374, 20 S. W. Rep, 629 : Leach v. 
 Francis, 41 Vt. 670 ; Partelo v. Harris, 
 26 Conn. 480; Ewingv. Runkle, 20 III. 
 448 ; Violett v. Violett, 2 Dana K\. 
 323 ; Foster v. Hall, 12 Pick. (Mass.) 
 89; Byrne v. Becker, 42 Mo. 264; 
 Bancroft v. Blizzard, 13 Ohio 30; 
 Splawn v. Martin, 17 Ark. 146; Gov- 
 ernor v. Campbell, 17 Ala. 566 ; Run] 
 v. Phillips, 4.s X. V. L25 ; Jaeger v. 
 Kelley, 52 X , Y. 274 ; Clements v. 
 Moore, (i Wall. 312; Astor v. Wells, 
 1 Wheat, l 1 ' 1 ' i Howe Machine < !o. v. 
 Claybourn, Fed. Rep. HI ; Pier- 
 son v. Slifer, .v. 1 Mo. A.pp 
 Blumer v. Bennett, 11 N 
 
 X. W. Rep. 14; W Iruff \. Bowles, 
 
 nil \. C. L97, L0 s. E. Rep. 182 
 
 oinl Xai. Bank of Beloil v. Merrill, 
 
 SI Wis. 142, 50 X. W. Rep. 503 ;
 
 358 
 
 PARTICIPATION IN FRAUDULENT INTENT. 
 
 I99 
 
 In discussing- this subject Chief-Justice Church used 
 these words : " Nor is the vendor's fraudulent intent suffi- 
 cient. The vendee must be also implicated." 1 So in 
 another case it is asserted that in order to set aside, as 
 fraudulent against creditors, a conveyance to one cred- 
 itor, he must have participated in or have been cognizant 
 of the grantor's unlawful motives when he accepted the 
 
 v. Garrison, 85 Iowa 447. 52 N. W. 
 Rep. 359 ; LePage v. Slade. 79 Tex. 
 473, 15 S. W. Rep. 496 ; Bannister v. 
 Phelps, 81 Wis. 256, 51 N. W. Rep. 
 417 ; Nadal v. Britton, 112 N. C. ISO, 
 16 S. E. Rep. 914. 
 
 No participation by infant in 
 fraudulent intent. — The creditor is 
 sometimes embarrassed or foiled by a 
 conveyance to some person not sni 
 juris, as for instance an infant. In 
 Hamilton v. Cone, 99 Mass. 478, 
 Gray, J., said : " The only case cited 
 for the tenant which requires special 
 consideration is that of Goodwin v. 
 Eubbard, 15 Mass. 210. But in that 
 case the person to whom the convey- 
 ance was made, as well as his subse- 
 quent grantee, the demandant, par- 
 ticipated in the fraudulent intent of 
 the debtor, who paid the purchase- 
 money ; and the decision by which 
 this court, having then no jurisdic- 
 tion in equity to redress fraud, held 
 that a grantee who participated in the 
 fraudulent intent could not maintain 
 a writ of entry against a creditor who 
 had taken the land on execution 
 against the fraudulent debtor, cannot 
 I"- extended to this case, tn which 
 tin- demandant at the time of the 
 conveyance to him was an infant of 
 less than a year old, and could not 
 participate in the fraud, and there 
 was do offer to show that the convey- 
 ance was without adequate considera- 
 tion." ( Siting Howe v. Bishop, :'. Met. 
 Mass.) 30; Clark v. Chamberlain, 13 
 
 Allen (Mass.) 257. See Mathes v. 
 Dobschuetz, 72 111. 438: Tenney v. 
 Evans, 14 N. H. 343; 40 Am. Dec. 
 194. See, also, § 26. In Matthews v. 
 Rice, 31 N. Y. 460, it is asserted that 
 the fact that the plaintiff was an in- 
 fant and purchased partly upon credit 
 from a firm in apparently straitened 
 pecuniary circumstances, did not ren- 
 der the sale void in law as against 
 creditors. The court said : "The in- 
 fancy of the plaintiff did not alter or 
 affect the transaction, save as a cir- 
 cumstance bearing upon the question 
 of fraud in fact. There is no legal 
 bar to the right of an infant to pur- 
 chase property either for cash or 
 upon credit ; and the vendor cannot 
 avoid or retract the sale, or question 
 its validity on the ground that the 
 vendee is an infant, much less can a 
 stranger impeach the sale on that 
 ground. In this, as in other cases of 
 a sale of chattels, its invalidity as to 
 creditors depends upon whether it 
 was made with intent to defraud 
 them." See Washband v, Washband, 
 27 Conn. 424 : ( larter v. Grimshaw, 49 
 N. H. 100. 
 
 ■Jaeger v. Kelley, 52 ;N. Y. 275. 
 See Starin v. Kelly, 88 N. Y. 421 : 
 Grunsky v. Parlin, 110 Cal. 179, 42 
 Pac. Rep. 575 ; American Brewing 
 Co. v. McGruder (Ky.) 32 S. W. Rep. 
 603 ; Galle v. Tode, 148 N. Y. 270. 42 
 X E. Rep. 673 ; Flemington Nat. Bk. 
 v. Jones, 50 N. J. Eq. 249, 24 All 
 Rep. 928.
 
 §199 PARTICIPATION !\ FRAUDULEN1 INTENT. 
 
 conveyance. 1 In Prewit v. Wilson, 8 Field, [., observed : 
 "When a deed is executed for a valuable and adequate 
 consideration, without knowledge by the grantee of any 
 fraudulent intent of the grantor, it will be upheld, how- 
 ever fraudulent his purpose. To vitiate the transfer in 
 such case, the grantee also must be chargeable with 
 knowledge of the intention of the grantor. :! It is held in 
 Dudley v. Danforth, 4 by the New York Commission of 
 Appeals, that where a vendee purchased property solely 
 with a view of receiving payment of an honest debt, an 
 intent on the part of the debtor to hinder and defraud 
 creditors would not affect the vendee's title, although the 
 vendee had notice of the intent, provided he did not par- 
 ticipate in it. 5 In such case the purchase is in reality a 
 preference of a creditor; an act allowed by law unless 
 actual participation in the fraud is shown. A distinction 
 should be made between conveyances made for a con- 
 sideration paid to the grantor at the time of the convey- 
 ance and those made in payment of a debt. In the 
 first case knowledge of the fraudulent intent on the part 
 of the grantor, and his purpose to deprive the creditors 
 of the consideration received should be enough to invali- 
 date the conveyance. In such cases the payment of a 
 consideration, knowing that the object of the sale is to 
 
 1 Roe v. Moore. 35 N. J. Eq. 526. See Curtis v. Leavitt, L5 X. Y. '•• In 
 
 2 103 U. S. 24. Graham v. Railroad Co., 102 ' 
 
 3 Werner v. Zierfuss, 162 Pa. St. 161, Bradley, J., said: "We Bee no 
 365, 29 Atl. Rep. 737. reason whythe disposal by a corpora- 
 
 4 61 N. Y. 626. tion of any of its property should !»• 
 6 Knower v. Central Nat. Bank, questioned by subsequent creditors of 
 
 124 N. Y. 552, 27 N. E. Rep. 217; the corporation any more than a like 
 
 Harris v. Russell, 93 Ala. 59, 9 So. disposal by an individual of his prop 
 
 Rep. 541 ; Werner v. Zierfuss. 162 Pa. erty should be so. The same princi- 
 
 St. 360, 29 Atl. Rep. 737; Treusch v. pies of law applj to each." Morrow 
 
 Ottenburg 4 C. G. A. 629, 51 Fed. Shoe Mfg Co. v. New England Shoe 
 
 Rep. 867. ' Co., 60Fed. Rep. 341; rTollin 
 
 Rules' as to Corporations. -The field Coal, etc., Co., 150 tT. S 
 
 rules governing fraudulent transfers S. C. Rep. L27 I tole v. Millerton I 
 
 are also applicable to corporations. Co., 133 N. V. 164, 30 N E Rep
 
 360 INTENT AFFECTING ALIENATIONS. § 200 
 
 facilitate the covering up of assets, is an actual participa- 
 tion. It is different in the second case. A creditor has 
 a right to have his debt paid, and by accepting such 
 payment he does not enable the grantor to defraud his 
 creditors, and mere knowledge of a fraudulent intent, in 
 which he does not participate, should not invalidate the 
 conveyance as to him. 
 
 S200. Intent affecting voluntary alienations. — The rule as 
 to intent in voluntary alienation, as we shall presently see, 
 necessarily differs from cases where a valuable consider- 
 ation ' is present. In the latter class of cases mutual 
 participation in the fraudulent design must, of course, 
 ordinarily be established. Where the alienation is volun- 
 tary the invalidity may, as already shown, be predicated of 
 the fraudulent intent of the vendor without regard to the 
 knowledge or motives of the vendee. In such cases the 
 vendee is, of course, cognizant of the fact that nothing 
 was paid for the property. The cases relating to this 
 branch of the inquiry are reviewed by the Supreme Court 
 of Maine in Laughton v. Harden, 2 an important case 
 from which we have already quoted. 3 Judge Story thus 
 
 1 See Chap. XV. ticipated in the fraud or not.' In that 
 
 - 68 Me. 213. See Tucker v. An- case, the contending party was a 
 
 drews, 13 Me. 124 ; Lee v. Figg, 37 creditor subsequent to the convey- 
 
 Cal. 328 ; Watson v. Riskamire, 45 ance. In Beecher v. Clark, 12 Blatchf. 
 
 Iowa 233; Stearns v. Gage, 79 N. Y. 256. ;i voluntary conveyance was set 
 
 102 ; Jackson v. Lewis, 34 S. C. 1; aside for the benefit of both prior and 
 
 Wilson v. Marion, 147 N. Y. 597, 42 subsequent creditors. Hunt, J., says : 
 
 X. K. Rep. 190 ; Jacobs v. Morrison. • I cannot assent to the proposition, 
 
 136 N. V. 105, 32 N. E. Rep. 552. that it is necessary that the grantee 
 
 See g§ 07, 98. should have known that the intent of 
 
 The cases as to intent - Voluntary t lie grantor was fraudulent, and that 
 
 conveyances. — The court, in Laughton she should have been an intentional 
 
 v. Earden, 68 Mo. 213, summarize the party to the fraud. The fact that a 
 
 m-isiis follows: "In Hitchcock v. wife received a voluntary conveyance 
 
 Kiely, 11 Conn. 611, it was decided of the same, in ignorance of these 
 
 that ' a voluntary conveyance, fraudu- facts (showing fraud in fact), will 
 
 hut in fact, will be set aside in favor not make the conveyance a valid one.' 
 
 of creditors, whether the grantee par- Savage v. Murphy, 8 Bosw. (N. Y.)
 
 201 
 
 WHERE CONSIDERATION IS ADEQUATE. 
 
 
 states the rule borrowed from the civil law by both the 
 common law and the courts of chancery : " Hence, all 
 voluntary dispositions, made by debtors, upon the score of 
 liberality, were revocable, whether the donee knew of the 
 prejudice intended to the creditors or not." ' 
 
 §201. Of intention where consideration is adequate. — The 
 rule that a voluntary conveyance of property by a debtor 
 
 75, contains a learned review by Hoff- 
 man, J., of the earlier decisions by 
 which subsequent purchasers and 
 creditors were permitted to quest inn 
 conveyances as being fraudulent 
 against them, and this proposition is 
 there laid down: 'Where a deed is 
 made to defraud creditors, by one at 
 the time in debt, and who subse- 
 quently continued to be indebted, it 
 is fraudulent and void, as to all such 
 subsequent as well as existing cred- 
 itors.' See also Carpenter v. Roe, 10 
 N. Y. 227. In Mohawk Bank v. At- 
 water, 2 Paige (N. Y.) 54, Chan- 
 cellor Walworth says : ' It is of no 
 consequence in this suit whether the 
 son knew of the extent of his father's 
 indebtedness or not. The grantee 
 without valuable consideration can- 
 not be protected, although he was not 
 privy to the fraud.' In Carter v. 
 Grimshaw, 49 N. H. 100, the intent of 
 minor children upon whom a settle- 
 ment was made was considered of no 
 consequence at all. Coolidge v. Mel- 
 vin, 42 N. H. 510, 534, sustains the 
 same view. In Savage v. Murphy, 34 
 N. Y. 508, the same idea is strongly 
 presented by the court. Among other 
 things said about the rights of subse- 
 quent creditors against a voluntary 
 deed, this is added: 'The indebted- 
 ness then existing was merely trans- 
 ferred, not paid, and the fraud is as 
 palpable as it would be if the debts 
 now unpaid were owing to the sa mi' 
 creditors who held them at the time 
 of the transfers.' In Clark v. Cham- 
 
 berlain, 13 Allen (Mass.) 251 
 Hoai\ J., remarks : ' Winn the pur- 
 pose of the grantor is shown to have 
 been actually fraudulent as in cred 
 itors, ii is sufficienl to prove thai the 
 .-ran tee takes without consideration, 
 without proving otherwise his par- 
 ticipation in the fraudulent intent. 1 
 Lee v. Figg, 37 Cal. 328, concludes an 
 opinion thus : ' It (the allegation I 
 avers thai the com ej ance to ( >gden 
 
 was without consideration, and this is 
 
 sufficient to avoid it as to creditors of 
 Lee (the grantor), whether Ogden 
 was aware of the fraudulent purpose 
 of Lee and actively aided it or not.' 
 Lassiter v. Davis, 64 N. < '. 198, decides 
 thai 'a voluntary gift is void, if it 
 was the maker's intent to hinder, de- 
 lay or defraud creditors, whether the 
 party who takes the gifl participated 
 in the fraudulent intent or not.' In 
 Foley v. Bitter, 34 Md. 646, it was 
 held to the same effect, and it i> then' 
 said : ' The innocence of the trustee, 
 or of the creditors named in the deed, 
 will not save it (an assignment) from 
 
 condemnation under the statu! t 
 
 Elizabeth) it' fraudulent in fact on the 
 part of the grantor.' " 
 story's Eq. Jur. . 
 Spaulding v. Blythe, 73 [nd. 94 
 liland v. dunes. 1 II [nd. 662, 18 N E 
 Rep. 939 ; Trumbull v. Hewitt, 65 
 Conn. 73,31 Atl. Rep. 192; Bitchcock 
 v. Kiely, 41 Conn. 611 : McKenna \. 
 Crowley, 10 R, 1. 364, 17 All. R< p. 
 354, citing the text.
 
 62 WHERE CONSIDERATION IS ADEQUATE. 8 201 
 
 may be annulled at the suit of creditors, where such con- 
 veyance leaves the debtor without the means to pay the 
 remaining creditors, 1 seems to commend itself as being 
 both necessary and reasonable. The theory of the law is 
 sometimes said to be that the debtor's property consti- 
 tutes a fund upon which the creditors are supposed to 
 have relied in extending the credit, 2 and to which they 
 are entitled to resort for payment of their claims, but this 
 has been termed an inaccurate use of language. The 
 technical qualities of a trust fund do not pertain to a 
 debtor's estate. The plainest dictates of common sense 
 and the simplest principles of justice require that any 
 depletion of a debtor's estate should not be permitted to 
 stand in favor of a voluntary alienee, in cases where cred- 
 itors remain unpaid. Chief-Justice Shaw said : "In a 
 voluntary absolute conveyance, the fact that no consider- 
 ation is paid is, of course, known to both parties. If the 
 grantor was in debt at the time, as such conveyance must 
 necessarily tend to defeat the rights of creditors, and as 
 all persons are presumed to contemplate and intend the 
 natural and probable consequences of their own acts, the 
 conclusion is irresistible that such conveyance was 
 intended to defeat creditors, and is therefore fraudulent." 3 
 A different question, however, is presented where full 
 pecuniary consideration has been paid by the purchaser. 4 
 Can the transfer be nullified in .such cases, and if so, in 
 what instances, by what procedure and upon what theory? 
 The answer is that, generally speaking, a debtor's convey- 
 ance can be set aside where it is made with a mutual 
 fraudulent intent to hinder, delay . and defraud creditors, 
 and that adequacy of consideration will not save it. 
 In this class of cases " the question of intent becomes 
 
 1 McKeown v. Allen, 37Fla. 490,20 104. See First Nat. Bank v. Bertschy, 
 
 So. Rep. 556. 52 Wis. 443, 9 N. \V. Rep. 534. 
 
 See < lhap. II.. 4 Marmon v. Harwood, 124 111. 104. 
 
 Warden v. Babcock 2Met. (Mass.) I.G N. E. Rep. 230. See Chap. XV.
 
 § 201 WHERE CONSIDERATION IS ADEQUA l I . 
 
 prominently material." 1 Lord Mansfield said, in dis- 
 charging a rule for a new trial in Cadogan v. Kennetl : - 
 " If the transaction be not bona fide, the circumstance 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." The 
 " several cases " of which this learned jurist had knowledge, 
 where conveyances founded upon adequate consideration 
 had been overturned by reason of the bad faith of the 
 participants, have grown to many thousands, and the prin- 
 ciple has become one of vital interest and paramount 
 importance to the parties concerned. That a conveyance, 
 whether it be of real or personal property, founded upon 
 adequate consideration, may be* vacated at the suit of 
 creditors for fraud, is established in an endless variety of 
 cases, a few only of which we consider it necessary to 
 cite. 3 A mere volunteer from a fraudulent grantee is in no 
 better position. 4 In Wadsworth v. Williams, 3 Hoar. J., 
 
 1 Bradley v. Ragsdale, 64 Ala. 559 ; the reach of his creditors, would be a 
 
 Scott v. Davis, 117 Ind. 232, 20 mala fide purchaser and entitled to no 
 
 N. E. Rep. 139 ; Plunkett v. Plunkett, protection as against creditors." 
 
 114 Ind. 484, 16 N. E. Rep. 612, 17 a 2 Cowp. 434. 
 
 Id. 562; Marmon v. Harwood, 124 'Brinks v. Heise, 84 Pa. St. 351 , 
 111. 104, 16 N. E. Rep. 236. "A sale Ashmeadv. Hean, 13 Pa. St. 584 ;< os 
 of property, even for full value, in v. Miller. 54 Tex. 27 ; Stinson v. Haw- 
 order to hinder or delay creditors, kins, 13 Fed. Rep. 833; Eartshorn \. 
 both vendor and vendee knowing the Eames, 31 Me. 93 ; Holbird v. Ander- 
 fraudulent purpose, cannot be up- son, 5 T. R. 235 ; Pickstock v. Lyster, 
 held." Treat, J., in Stinson v. Haw- 3 M. &. S. 371 ; Covanhovan v. Bart, 
 kins, 4 McCrary 504. In Greenleve v. 21 Pa. St. 500 ; Grover v. Wakeman, 
 
 Blum, 59 Tex. 127, the court says : "A 11 Wend. (N. Y.) 192 ; Si v. Spen- 
 
 purchaser not a creditor who should cer, 77 Mo. 359; Collier v. Banna, 71 
 
 buy the property of a debtor, how- Md. 253, 17 Atl. Rep. L017. 
 
 ever adequate might be the consider- 4 Dexter v. Smith, 2 Mason 
 
 ation which he paid, with a knowledge Fed. Cases, 621 . 
 
 that^it was'the intention of the debtor 5 100 Mass. 130. 
 by the sale to put the property beyond
 
 364 WHERE CONSIDERATION IS ADEQUATE. § 201 
 
 in delivering the opinion of the Supreme Court of Massa- 
 chusetts, said : " A conveyance made with an actual pur- 
 pose and intent to defraud creditors, present or future, is 
 not valid against them in favor of a grantee who partici- 
 pates in the fraudulent intention, although made for a full 
 consideration, and by a grantor in the possession of any 
 amount of property." The learned Chief-Justice Black 
 observed : " If a debtor, with the purpose to cheat his 
 creditors, converts his land into money, because money is 
 more easily shuffled out of sight than land, he, of course, 
 commits a gross fraud. If his object in making the sale 
 is known to the purchaser, and he nevertheless aids and 
 assists in executing it, his title is worthless, as against 
 creditors, though he may have paid a full price. But the 
 rule is different when property is taken for a debt One 
 creditor of a failing debtor is not bound to take care of 
 another. It cannot be said that one is defrauded by the 
 payment of another. In such cases, if the assets are not 
 large enough to pay all, somebody must suffer. It is a 
 race in which it is impossible for every one to be fore- 
 most.'" J It matters not what price was paid, or how early 
 after the sale possession was changed, or how notorious 
 the transaction was, if the vendor made the sale in order 
 to defraud his creditors, and the vendee purchased with 
 the design to aid him in the perpetration of the fraud, 
 the sale is no more valid or effectual against such creditors 
 than as if no consideration had passed. 2 The right of a 
 debtor, even in failing circumstances, to prefer a creditor, 3 
 or to sell and dispose of his property in good faith and 
 for value, to whomsoever he wishes, is generally unques- 
 
 1 Covanhovan v. Hart. 21 Pa. St. ' Bostwick v. Burnett, 74 N. Y. 
 
 500; Nichols v. Ellis, 98 Mo. 344, 319 ; Hauselt v. Vilmar, 2 Abb. N. C. 
 
 11 S. W. Eep. T41 ; Werner v. Zier- (N. Y.) 222 : Gray v. MrCallister, 50 
 
 fuss, L62 Pa. St. 866, 29 Atl. Rep. 737. Iowa 497. 
 Stone v. Spencer, 77 Mo. 359.
 
 § 201 WHERE CONSIDERATION IS ADEQ1 VII. 
 
 tioned in the courts. 1 Thus the intention to defeat an 
 execution creditor will not render the sale fraudulent if it 
 was made for a valuable consideration, and is bona fide 
 and absolute. 3 So a confession of judgment with intent 
 to give priority is valid. 3 The transfers which we have 
 instanced as objectionable are those which are merely 
 colorable, or in which some secret right, benefit, favor, or 
 interest is reserved to the debtor, or some unusual incident 
 attends the transaction, stamping it as being out of the 
 ordinary course of business, and as having been contrived 
 to hinder, delay, or defraud creditors. Payment of the 
 consideration is often in such cases a part of the scheme 
 to more completely cover and conceal the fraud. Hence 
 it is said that it is not the consideration, but the intent 
 with which a conveyance is made, that makes it good or 
 bad as to creditors. 4 Where such fraudulent intent is 
 proved, the fact that the debtor had property in another 
 State sufficient to pay his debt will not save the trans- 
 action. 5 
 
 In Jones v. Simpson, 6 it was said that where bad faith 
 in the vendor appeared, the burden was cast upon the 
 vendee to show consideration, and this being established 
 the creditors must assume the burden of attacking the 
 vendee's good faith. This seems to state the rule cor- 
 rectly, but general expressions to the effect that proof of 
 
 1 Hobbs v. Davis, 50 Ga. 214; Hall Beards v. Wheeler, I! Bun(N. Y.) 
 v. Arnold, 15 Barb. (N. Y.) 599. See 539 ; affi'd 76 N. V, 213. See Trier \ . 
 Chapter XXV. Herman. 115 X. V. Hi:!. 21 N. E. Rep. 
 
 2 Wood v. Dixie, 7 Q. B. 892; 1034: Holbird v. Anderson, 5 '1'. I:. 
 Storey v. Agnew, 2 111. App. 353 ; Wil- 235. See i 1 1 . 
 
 son v. Pearson, 20 111. 81 ; Francis v. ' Hunters v. Waite, 3 Gratt. \ a. 
 
 Rankin, 84 111. 169; Dudley v. Dan- 26; Lockhard v. Beckley, LOW. Va. 
 
 forth, 61 N. Y. 626 ; Dalglish v. Mc- 96. 
 
 Carthy, 19 Grant (Ont.) 578; Ninimo Barding v. Elliott, 91 Hun (N Y.) 
 
 v. Kuykendall, 85 111. 476 ; Ricbes v. 502, 36 N. Y. Supp. 648. 
 Evans, 9 C. & P. 640; Frazer v. ''116 U. S. 610, 6 S. C Re] 
 
 Thatcher, 49 Texas, 26; Clark v. Mor- See Bamberger v. Schoolfield, L60 Q. 
 
 rell, 21 U. C. Q. B. 600; Darvill v. S. 150, 16 S. C. Rep. 225. 
 Terry, 6 H. & N. 807.
 
 366 INTENTION TO DEFRAUD. § 202 
 
 bad faith in the vendor throws the burden of establishing 
 both consideration and good faith upon the vendee are 
 frequently encountered in the authorities. 
 
 § 202. Intention to defraud subsequent creditors. — We 
 have elsewhere seen that, generally speaking, a voluntary 
 alienation is, as to existing creditors, according to some 
 cases, presumptively fraudulent, but, as to subsequent 
 creditors, a fraudulent intent must be proved or estab- 
 lished. 1 The element of contemplated future indebted- 
 ness or future schemes of fraud must be introduced. 2 
 While a conveyance made to defraud a subsequent judg- 
 ment-creditor is within the statute, 3 it seems to be laid 
 down in some of the cases that subsequent creditors can 
 only avail themselves of the fraud which is practiced 
 against them. 4 In Simmons v. Ingram, 5 the court said : 
 " To make a deed void as to subsequent creditors, there 
 must be proof of an intent to defraud them ; it is not 
 sufficient that there is an intent to defraud others whose 
 debts were in existence at the time." ° In Florence Sew- 
 ing Machine Company v. Zeigler, 7 it was held that in 
 order to avoid a sale founded upon an adequate new con- 
 sideration — that is, not in payment of an antecedent 
 debt — on the alleged ground that it was made to hinder, 
 delay and defraud creditors, the creditor attacking the 
 
 'Rose v. Brown. 11 \V. Va. 134; 3 Hoffman v. Junk, 51 Wis. 614,8 
 
 Shand v. Hanley, 71 N. Y. 319-322; N. W. Rep. 493. 
 
 Burdick v. GK11.2 McCrary 1SS ; Flor- 4 Harlan v. Maglauglin, 90 Pa. St. 
 ence S. M. Co. v. Zeigler, 58 Ala. 221 ; 293 ; Snyder v. Christ, 39 Pa. St. 499 ; 
 Earlan v. Maglaughlin, 90 Pa. St. 293. Monroe v. Smith, 79 Pa. St. 459 ; Kim- 
 See Mullen v. Wilson, 44 Pa. St. 416; ble v. Smith, 95 Pa. St. 69; Haak's 
 Partridge v. Stokes, 66 Barb. < X. Y.) Appeal, 100 Pa. St. 62. 
 586; Berring v. Richards, 1 McCrary 60 .Miss. 898. 
 
 574 : City Nat. Bank v. Hamilton, 34 6 Citing Hilliard v. Cagle, 46 Miss. 
 
 X. .1. Eq. 160. See Chapters V, VI. 309; Prestidge v. Cooper, 54 Miss. 74. 
 
 96, Eorbach v. Hill, 112 U. Compare Teed v. Valentine, 65 N. Y. 
 
 S. Ill, 1 19 5 S. ( !. Rep. 81 : Hilton v. 474, and cases cited. 
 
 Morse 75Me. 258; Neubergerv. Keim, : 58 Ala. 224. See Kellar v. Tay- 
 
 184 N. Y. 85, 31 N. E. Rep. 268. lor, 90 Ala. 290, 7 So. Rep. 907.
 
 § 203 RES ADJ1 DI( ATA. 
 
 sale must show two things : first, that the vendor made 
 the sale with such intent, and second, that the purchaser 
 participated in such intent, or knew of its existence, or 
 had knowledge of some fact calculated to put him on 
 inquiry, and which, if followed up, would have led to the 
 discovery that the vendor's intent was fraudulent. 1 
 
 § 203. When question of intent res adjudicata. — In Stock- 
 well v. Silloway, 2 the Supreme Court of Massachusetts 
 said : " To prove the intent of the defendant in making 
 the conveyances alleged to be fraudulent in the charges 
 filed by the plaintiff, it was competent to show other 
 fraudulent conveyances made about the same time, and as 
 a part of the same scheme of fraud. For this purpose 
 the plaintiff introduced the record of a judgment of the 
 Superior Court rendered in proceedings between the same 
 parties, under the provisions of the general statutes in 
 relation to poor debtors, adjudging the defendant guilty 
 of the charges therein alleged against him. The plaintiff 
 asked the court to rule that this judgment was conclusive 
 evidence that the conveyances set forth in the former 
 case as fraudulent, and upon which the defendant was 
 then convicted, were fraudulent as alleged. We are of 
 the opinion that the court erred in refusing this ruling. 
 When a fact has once been put in issue and determined 
 by a final judgment in the course of a judicial proceeding, 
 such judgment is conclusive evidence of the existence of 
 the fact in all controversies between the same parties in 
 which it is material. It is to be regarded as a fixed fact 
 between the parties for all purposes." 1 
 
 1 Crawford v. Kirksey, 55 Ala. 282 ; B See Burlen v. Shannon, 99 Mass. 
 
 Montgomery v. Bayliss, 96 Ala. 344, 200, and cases cited ; Commonwealth 
 
 11 So. Rep. 198 ; Edwards v. Reid, 39 v. Evans, 101 Mass. 25 ; Dennis' I 
 
 Neb. 646, 58 N. W. Rep. 202. 110 Mass. 18. 
 
 2 113 Mass. 385.
 
 
 [NTENT \ QUESTION FOR THE JURY. 
 
 204 
 
 < 204. Intent a question for the jury.— The question of 
 fraudulent intent is almost uniformly* one of fact, 1 to be 
 submitted in certain cases to a jury," and it is regarded as 
 error for the court to interfere with the province of the 
 jury in this particular, unless, 3 as we have seen, 4 the fraud 
 is apparent on the face of the instrument from a legal con- 
 struction of it, r> and is so manifest that but one conclusion 
 can prevail. In determining the intent great latitude is 
 allowed." The rule as to submission to the jury is not 
 departed from even in strong and apparently conclusive 
 cases. If the jury err the verdict may be set aside. 
 Thus, in Vance v. Phillips,' it appeared that an insolvent 
 merchant sold his entire stock of goods to an infant, who 
 was also his clerk and brother-in-law, taking the infant's 
 note in payment, and then absconded. A verdict of a 
 jury, affirming the validity of the transaction, was 
 promptly set aside as contrary to evidence. 8 Especially 
 will the verdict be overturned where it is apparent that 
 the jury must have misapprehended the evidence. 9 By 
 statute in New York the question of fraudulent intent in 
 
 : Morgan v. Becker, Tl Cal. 543,16 
 Pac. Rep. 307 ; Mackellar v. Pills 
 bury, 18 Minn. 396, 51 N. W. Rep. 
 223; Billings v. Russell, 101 N. Y. 
 233, I N E. Rep, 531 ; Citizens' Bank 
 v. Bolen, 121 End. 301, 23 X. E. Rep. 
 1 16. In Indiana this is provided by 
 statute. See Sickman \. Wilhelm, 
 180 Lnd. 180, '.".I X. E. Rep. 908 i Per- 
 Bonette v. Cronkhite, 1 10 lnd. 586, W 
 X E. Rep. 59. 
 
 Weaver v. Owen . L6 < Oregon 304, 
 Weeksv. Hill. 88 Me. 
 \M & p. 778 . II- '.mii v. Com- 
 mercial Banking I !o., 10 Neb. 820, 59 
 X. W, Rep 698 ; Kaufer v. Walsh. 88 
 Wia. 63,59 X.W. Rep. 160; Grimes Dry 
 Co. v Shaffer, II Neb. 1 12, 59 
 X \v Rep. tii 1 i.i\ in - \ 1 
 Ml N E. Rep. ii<;. 
 
 3 Peck v. Grouse, 46 Barb. (N. Y.) 
 151; Monteith v. Bax, 4 Neb. 171; 
 Vance v. Phillips, 6 Hill (N. Y.) 433; 
 Eobbs v. Davis, 50 Ga. 214; Murray 
 v. Burtis, 15 Wend. (X. Y.) 214 : Syra- 
 cuse Chilled Plow Go. v. Wing, 85 N. 
 Y. 126 ; Van Bibber v. Matins, 52 Tex. 
 109 : Winchester v. Charter, 102 Mass. 
 272 : Peiser v. Peticolas, 50 Tex. 638. 
 
 1 See §§ 8, 9, 10. 
 Van Bibber v. Mathis, 52 Tex. 
 409. 
 
 ' Winchester v. Charter, 102 Mass. 
 276. 
 
 6 Hill (N. Y.) 433. 
 
 8 See also Dotld v. McCraw, s .\rk. 
 83: Potter v Payne, 21 Conn. 362; 
 Marston v. Vultee, L2 .\hl». Pr. (N. 
 Y.) 143. 
 
 Edwards v. Currier, 43 Me. 474.
 
 § 204 INTENT A QUESTION FOR THE JURY. 369 
 
 these cases " shall be deemed a question of fact, and not 
 of law," * and it was strenuously claimed in behalf of the 
 vendee, in the widely known case of Coleman v. Burr," 
 that there was no finding by the referee of a fraudulent 
 intent ; but that, on the contrary, he had found the whole 
 transaction to be fair and honest, and that, therefore, the 
 transaction should stand. The court say, however, that 
 the referee has " found facts from which the inference 
 of fraud is inevitable, and although he has characterized 
 the transactions as honest and fair, that does not make 
 them innocent, nor change their essential character in the 
 eye of the law. Mr. Burr [the debtor] must be deemed 
 to have intended the natural and inevitable consequences 
 of his acts, and that was to hinder, delay and defraud his 
 creditors." 3 This principle has already been discussed in 
 the opening chapter, 4 but in view of the peculiar wording 
 of the New York statute, it is deemed important to give 
 the construction placed upon it by the court of final 
 resort. 5 In Bulger v. Rosa, 6 the court says : " The stat- 
 ute relating to fraudulent transfers and conveyances, 
 which declares that the question of fraudulent intent aris- 
 ing thereunder shall be deemed a question of fact, and 
 not of law, 7 does not, as now interpreted, interfere with 
 the prerogative of the court to direct a verdict, provided 
 the fraudulent intent is conclusively established on the 
 face of the instrument of transfer, or by the uncontra- 
 dicted verbal evidence." 8 
 
 1 2 N. Y.R. S. 137, § 4. Williams, 24 N. Y. 359 : Babcock v. 
 
 2 93 N. Y. 31 ; Bulger v. Rosa, 119 Eckler, 24 N. Y. 623, 632. 
 N. Y. 459, 24 N. E. Rep. 853. See ' See §§ 9, 10. 
 
 Neisler v. Hai'ris, 115 Ind. 565, 18 N. ■' See, as to intent to violate usury 
 
 E. Rep. 39. statutes, Fiedler v. Damn, 50 X. Y. 
 
 3 Citing Bump on Fraud. Con v. (3d 438. 
 
 ed.) 22, 24, 272, 278; Cunningham v. " 119 N. V. 164, .* I N. E. Rep. 858. 
 
 Freeborn, 11 Wend. (N. Y.) 241 ; Ed- 7 2 R. S. 137, § 4. 
 
 gell v. Hart, 9 N. Y. 213; Ford v. "Citing Ed-ell \ •. i lar! . 9 N. Y 213; 
 
 Ford v. Williams, 24 X. Y. 359. 
 
 24
 
 370 riFYING AS TO INTENT. § 205 
 
 § 205. Testifying as to intent. — A party called as a wit- 
 ness may testify as to his intention in performing an act 
 where such intention becomes material. 1 The purchaser 
 or vendee may, in answer to a question, testify directly 
 that he did not have any fraudulent intent, and that the 
 purchase was made by him in good faith. That it is 
 proper to put such a question to the purchaser was 
 directly decided in the case of Bedell v. Chase, 3 though 
 the contrary seems to be held in Minnesota, 3 and Ala- 
 bama. 4 In Blaut v. Gabler, 5 this question was asked : 
 •• Had anything transpired between Blaut and yourself — 
 conversation or otherwise — whereby you gave him to 
 understand, or whereby it was understood, that the trans- 
 action was for an improper purpose, or the purpose of 
 defrauding your creditors ? " The court decided that the 
 question was properly excluded upon the theory that it 
 did not call for a statement of the witness as to his intent 
 to defraud, but went far beyond this, and asked for a con- 
 clusion from what had transpired. The question was 
 characterized as being indefinite and complicated, and as 
 not coming within the rule which sanctions an inquiry as 
 to the intent of a party. As a general rule, it is proper 
 to allow the parties to testify concerning their intentions, 6 
 
 'Graves v. Graves, 45 X. II. 323. 3 Hathaway v. Brown, 18 Minn. 
 
 Hale v. Taylor, 15 X. H. 406; Ml. See also Minis v. Carpenter, 4 
 
 Royce v. Gazan, 76 Ga. 79; Sedgwick Col. App. :J0, 34 Pac. Rep. 1011. 
 
 v. Tucker, 90 Ind. 281; Gardoni v. ' Hinds v. Keith, 5? Fed. Rep. 10, 
 
 W I ward, 44 Kan 758, 25 Pac. Rep. 6 C. C. A.. 231 ; McCormick v. Joseph, 
 
 r.i'.i. cf. Sweeney v. Conley, 71 Tex. 77 Ala 236; Richardson v. Stringfel- 
 
 548 9 8. W. Rep. 548 Bice v. Rogers, low, 100 Ala. 416, 14 So. Rep. 283. 
 
 52 Kan. 207, 34 Pac. Rep 796; Phifer 11 X. V. 465. 
 
 *in, 100 N.C. 59,6 S. E. Rep. 672; • Bedell v. Chase. 34 N. Y. 388; 
 
 Gentry r.Kelley, 19 Kan. 82, 30 Pac. Griffin v. Marquardt, 21 N. Y. 121; 
 
 Rep. 186; Seymour v. Wilson, 11 X. Snow v. Paine, 114 Mass. 520; Thacher 
 
 ''■'■ Compare Cake > Pottsville v. Phinney, 7 Allen (Mass.) 146; Sey- 
 
 Bank, 116 564, 9 Atl Rep. 302 ; mour v. Wilson, 14 N. Y. 567. An ac- 
 
 Dillon v. Anderson, 13 N Y cused person may testify- as to his in- 
 
 3tarin \. Kelly, ~> tention in receiving a certain sum of 
 
 money. Peoplev. Baker,96N. V. 340.
 
 206 
 
 PROVING INII \ 1 . 
 
 37 ' 
 
 though this class of testimony is necessarily subjected to 
 close scrutiny. When the circumstances present conclu- 
 sive evidence of a fraudulent intent, no proof of innocent 
 motives, however strong, will overcome the presumption ; 
 but where the facts do not necessarily prove fraud, but only 
 tend to that conclusion, the evidence of the party who 
 made the conveyance, when he is so circumstanced as to 
 be a competent witness, should be received for what it 
 may be considered worth. 1 It is believed, however, not 
 to be proper to allow a witness to testify concerning the 
 intent or motive of another person, 2 even though he be 
 an agent and has full knowledge of the transaction. 1 
 
 §206. Proving intent. — The intent must be gathered 
 from all the circumstances. 4 In King v. Poole, 5 the court 
 
 1 Seymour v. Wilson, 14 N. Y. 569, 
 570 ; s. P. Edwards v. Currier, 43 Me. 
 474 ; Forbes v. "Waller, 25 N. Y. 430 : 
 Wheelden v. Wilson. 44 Me. 1 ; Miner 
 v. Phillips, 42 111. 123. 
 
 2 See Hathaway v. Brown, 22 Minn. 
 216 ; Peake v. Stout, 8 Ala. 647. " It 
 is not competent for one person to 
 state the motives influencing the con- 
 duct of another.'" Riley v. Mayor, etc. 
 of N. Y., 96 N. Y. 337. And it was 
 said in the case last cited that : "Evi- 
 dence of a secret and undisclosed in- 
 tent, entertained by one party at the 
 time of the making of a contract, 
 either express or implied, is not ad- 
 missible to vary the legal presump- 
 tions arising from the acts and 
 conduct of the parties." Riley v. 
 Mayor, etc., of N. Y., 96 N. Y. 339. 
 See Talcott v. Hess, 31 Hun (N. Y. ) 
 285. In Tooley v. Bacon, 70 N. Y. 
 37. the defense was that the properly 
 was placed in the intestate's hands 
 for the purpose of defrauding cred- 
 itors. Eaid, J. , said : " The plaintiff 
 could not be examined as a witness 
 ' in regard to any personal transaction 
 
 or communication' between him and 
 Bacon. The placing of property in 
 the hands of Bacon was a personal 
 transaction with him. and the intent 
 with which it was dour accompanied 
 and characterized the transaction and 
 was an element thereof. A witness 
 examined as to such intent must, 
 within the meaning of the Code, be 
 held to be examined in regard to the 
 transaction. There is the same reason 
 for excluding the living party from 
 testifying as to the intent with which 
 a personal transaction with a deceased 
 party was performed, as for exclud- 
 ing him as a witness to any other 
 part of the transaction." See Hard 
 v. Ashley, u; X. V. 619, 33N. I'.. Rep 
 177. 
 
 3 Rindskopf v. Myers, 77 Wis. 
 049, 46 N. W. Rep. sis 
 
 4 Zimmer v. Miller, 64 Md. 896, I 
 Atl. Rep. 858; Ecker v. McAllister, 
 45 Md. 309; Lincoln Exec's v. Foster, 
 45 U. S. App. 623 
 
 '- 61 Ga. 874. See Kempner v. 
 Churchill, 8 Wall. 369.
 
 572 PROVING INTENT. § 2C>6 
 
 said : " In investigating an alleged fraud, the relevancy 
 of a given fact does not depend upon its force, but upon 
 its bearing. Does it bear, either directly or indirectly, 
 with any weight whatever, on the main controversy or 
 any material part of it ? Not only is fraud subtle, but 
 that ingredient of a transaction which renders it fraud- 
 ulent in fact, namely, intention, is covered up in the 
 breast, hidden away in the heart. Outward manifesta- 
 tions of it may be slow in appearing, and when they do 
 appear, may be dim and indistinct. 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. To do this, one has to be picked 
 up here, another there, and so on till the collection is 
 complete." * Great latitude is allowed. 2 On an inquiry 
 as to the state of mind, sentiments, or disposition of a per- 
 son at a particular period, his declarations and conver- 
 sations are admissible. 3 In concluding this chapter we 
 may recall to the reader's attention the rule promulgated 
 in some of the cases that, if a transaction is entered into 
 for the purpose of defrauding any creditor, it is voidable 
 at the suit of all creditors. 4 
 
 Burdick v. Gill, 7 Fed. Rep. Riddell v. Munro, 49 Minn. 532, 52 N. 
 
 W. Rep. 141. 
 
 Winchester v. Charter, 102 Mass. 3 1 Greenleaf's Ev. §108; Tyler v. 
 
 Rea \. Missouri, L7 Wall. 542; Angevine, 15 Blatch. 537 : Baker v. 
 
 3V. Beeman~87 Mich. 481, 4!) Kelly, 41 Miss. 703. 
 
 N. W. Rep. 483 ; Gumberg v. Treusch, 'Allen v. Rundle, 50 Conn. 31. 
 
 l":: Mich. 544, 61 X. W. Rep. 872; See Warner v. Percy, 22 Vt. 155.
 
 CHAPTER XV. 
 
 CONSIDERATION. 
 
 § 207. Concerning consideration and I £ 215. Moral obligations 
 
 good faith. 
 
 208. Voluntary conveyances. 
 
 209. What is a valuable considera- 
 
 tion ? 
 
 210. Love and affection. 
 
 211. Transfer for grantor's benefit. 
 211a. Exchange of property. 
 
 212. Ante-nuptial settlement — Mar- 
 
 riage as consideration. 
 
 213. Illicit intercourse. 
 
 214. Illegal consideration. 
 
 216. Individual and copartnership 
 
 debts. 
 
 217. Future advances. 
 217a. Gifts to charity. 
 
 218. Services by members of a family. 
 
 219. Proof of consideration. 
 
 220. Recitals of consideration as evi- 
 
 dence. 
 
 221. Explaining recitals. 
 
 222. Sufficient consideration. 
 
 223. Insufficient consideration. 
 
 "Almost invariably some honest consideration is made the agency for floating a scheme of 
 fraud against creditors." Finch, J., in Baldwin v. Short, 125 N. V. 553, 560, 26 N. E. Rep. 928. 
 
 § 207. Concerning- consideration and good faith — Consid- 
 eration has been said to consist "either in some right, in- 
 terest, profit, or benefit accruing to the one party, or some 
 forbearance, detriment, loss, or responsibility, given, suf- 
 fered, or undertaken by the other." ' It is not essential 
 that the payment of the consideration be in money ; it 
 may be made in anything of value. 3 The subject cannot 
 be here considered from an elementary point of view in all 
 its ramifications, but some of its general bearings upon 
 our particular topic will be briefly noticed. It will be 
 found upon investigation that, generally speaking, the 
 question of consideration becomes important in the class 
 of litigation under discussion only in bona fide transac- 
 tions. If the alienation is effected with a mutual design 
 to hinder, delay or defraud creditors, the presence of even 
 the most bounteous or adequate consideration 3 will not 
 
 1 Currie v. Misa, L R. 10 Exch. 162. a Billings v. Russell, 101 X. V. 882, 
 
 •-' Taylor v. Miles, 19 Ore. 550, 553, 4 N. E. Rep. 531, 
 25 Pac. Rep. 143.
 
 574 
 
 CONSIDERATION AM) GOOD FAITH. 
 
 §207 
 
 save or cure it. 1 Thus a mortgage though given for a 
 just debt may be assailed as fraudulent. 2 Unilateral evil 
 intent will not, of course, suffice to overturn the transac- 
 tion. 3 "Mala fides" says Mr. May, "supersedes all 
 inquiry into the consideration, but bona fides alone is not 
 always sufficient to support a transaction not founded on 
 any valuable consideration." 4 The inadequacy of the 
 consideration, as is elsewhere shown, is not a matter which 
 the court will go into, except in so far as it may con- 
 stitute evidence tending to show that the transaction was 
 a sham:"' and the law will not "weigh consideration in 
 diamond scales."' Though grossly inadequate consider- 
 ation will render a conveyance fraudulent, 7 the avoidance 
 maybe only to the extent ot the inadequacy. 8 Generally 
 speaking, as we have already seen, the question whether 
 a conveyance is fraudulent or not depends upon its being 
 
 See Chap. XIV. Billings v. Rus- 
 sell. 10. N. Y. 282, 4 N. E. Rep. 
 531; Boyd v. Turpin, 94 X. < '. 137 ; 
 Landauer v. Mack, 43 Neb. 430, 
 ill N. W. Rep. 597: Gillespie v. 
 Allen, 37 \Y. Va. <;:.->, 1? S. E. Rep. 
 1 v 1 ( Sable v. ( iolumbus t ligar ( !o . 
 IK) ln.i. 563, 566, 38 N. E. Rep. 174. 
 citing the text. In Bradley v. Rags- 
 dale, <;i Ala. 559, ilii' court says: "If 
 tin' conveyance !>•• upon a valuable 
 consideration, then tin- question of 
 intent becomes pn iniinentrj material. 
 The consideration may lie paid in 
 nn.ij.v —may \»- valuable ami fully 
 adequate, 3 el it il was made ' with 
 intent i>> binder, delay, or defraud 
 creditors, purchasers or other per- 
 sons, of their law lu I ^niis, damages, 
 forfeitures, debts, or demands,' it is 
 void and stands for nothing." Citing 
 Codeol 1876, .: 2124 . Planters' & M. 
 Bank \. Borland, 5 Ala 581 ; < !um- 
 \. Met lullough, •"> Ala :;■.') : 
 
 Hubbard v. Allen, 5!) Ala. 283; 
 Howell v. Mitchell, in manuscript. 
 
 - Billings v. Russc-ll, 101 N. Y. -233. 
 1 X. E. Rep. 531; Syracuse Chilled 
 l'h.w Co. v. Win-. 85 X. Y. 421, 42G ; 
 Schmidt v. Opie, 33 X. J. Eq. 141 : 
 Blennerhassett v. Sherman, 105 U. 
 S. 117. 
 
 ; Prewit v. Wilson, 103 U. S. 24 ; 
 Wood v. Stark. 1 Hawaiian Rep. 10; 
 Herring v. Wickham, 29 Graft. (Va 1 
 628 See chap. XIV. 
 
 ' .May on Fraud. Conveyances, p. 23:5. 
 
 6 Per Sir W. M.James, in Bayspoole 
 v. Collins. IS W. R. 730. 
 
 1 Per Lord Talbot, as quoted bj 
 Wilmot. ('. J., in Roe v. Mitton, 2 
 \\'il>. 858 n 
 
 'Singree v. Welch, 32 Ohio St. 320; 
 Cable \. Columbus cigar Co., 140 
 [nd. 568, 568, 38 X. E Rep. 474. See 
 [looker v. Rooker, •.".» Ohio St. 1. 
 
 ■ Jamison v. McNally, 21 OhioSi ',".'■"> 
 See Black v. Kuhlman, 30 Ohio St. 196.
 
 § 208 VOLUNTARY CONVEYANi J75 
 
 made upon good consideration and bona fide. It is not 
 sufficient that it be upon good consideration or bona fide; 
 it must be both. 1 The separation of these elements is 
 fatal to the transaction as against creditors.'- This rule is 
 concisely stated in a case of much importance in the 
 United States Supreme Court. " It is not enough," says 
 Woods, J., " in order to support a settlement against cred- 
 itors, that it be made for a valuable consideration. It 
 must be also bona fide. If it be made with intent to hin- 
 der, delay, or defraud them, it is void as against them, 
 although there may be in the strictest sense a valuable or 
 even an adequate consideration," 3 unless at least the 
 creditor has obtained the benefit of the consideration. 4 
 " Forms," said Elliott, J., in a well considered case, "are 
 of little moment, for where fraud appears courts will drive 
 through all matters of form and expose and punish the 
 corrupt act. A conveyance is not protected, although 
 full consideration is paid, where grantor and grantee 
 unite in a fraudulent design to defraud creditors." 5 The 
 vendee will be protected only to the extent of the consid- 
 eration parted with before notice of the fraud. 6 
 
 § 208. Voluntary conveyances. — It is perhaps unneces- 
 sary to observe that a voluntary conveyance "implies the 
 
 1 Sayre v. Fredericks, 16 N. J. Eq. Bunn v. Ahl, 29 Pa. St. 387 ; Root v. 
 
 209; Schmidt v. Opie, 33 N. J. Eq. Reynolds, 32 Vt. 139 ; Kempner v. 
 
 141; Billings v. Russell. 101 N. Y. Churchill, 8 Wall. 362; Kerr on Fraud 
 
 232, 4 N. E. Rep. 531, citing the & Mistake, p. 200 ; Davis v. Schwartz, 
 
 text. 1. 55 U. S. 639, 15 S. C. Rep. 2 
 
 - See § 15. 4 Davis v. Schwartz, 155 D". S. 689. 
 
 3 Btennerhassett v. Sherman, 105 U. 15 S. C. Rep. 237. 
 
 S. 117. SeeTwyne's Case, 3 Rep. 80, 5 Buck v. Voreis, 89 [nd. 117 : Bil- 
 
 2 Coke 212; Holmes v. Penney, 3 lings v. Russell, 101 N. Y. 226, I X. 
 
 Kay & J. 90 ; Gragg v. Martin, 12 E. Rep. 531. See Baldwin v. Short, 125 
 
 Allen (Mass.) 498 ; Brady v. Briscoe, N. Y. 559, 26 N. E. Rep. 928. 
 
 2 J.J. Mar. (Ky.) 212; Bozman v. 6 Hedrick v. Strauss, 42 Neb. 192, 
 
 Draughan, 3 Stew. (Ala.) 243 ; Farm- 60 N. W. Hep. 928; Bush \. Collins, 
 
 ers'Bankv. Douglass, 19 Miss. 469; 35 Kan. 535, 11 Par. Rep. 425.
 
 Ij6 VOLUNTARY CONVEYANCES. § 208 
 
 total want of a substantial consideration," ] or " is a deed 
 without any valuable consideration." ~ Such a transfer 
 is more easily susceptible to attack than a conveyance 
 founded upon an adequate consideration ; for a transfer 
 by a debtor without consideration, made for the purpose 
 of defrauding his creditors, can be impeached by the 
 creditors for fraud, even though the grantee was ignorant 
 of the fraudulent purpose for which the covinous convey- 
 ance was given. 3 The onus of establishing a fraudulent 
 intent is not so great. In Lee v. Figg 4 the court observed 
 that whether the voluntary alienee participated in and 
 aided the covinous intent or not was immaterial ; u he was 
 not a purchaser in good faith. " The distinction may be 
 restated as follows : A voluntary gift or settlement is 
 voidable if it was the intent of the maker to hinder, delay, 
 or defraud creditors, whether the party who received the 
 gift participated in the fraudulent intent or not ; an abso- 
 lute conveyance for a valuable consideration is good, 
 notwithstanding the intent of the maker to defraud, 
 unless the other party participated in the fraud. 5 We 
 have elsewhere shown that, in the majority of the cases, 
 a voluntary alienation is regarded as presumptively fraudu- 
 lent as to existing creditors,' 1 while in other cases this 
 presumption is conclusive. 7 Where, however, a corpo- 
 ration, or individual, perfectly solvent at the time, and 
 having no actual intent to defraud creditors, disposes of 
 lands or property for an inadequate consideration, or by 
 
 'Washband v. Washband, 27 Conn. *37Cal. 336. 
 
 181. Lassiter v. Davis, 64 N. C. 498. 
 
 •Seward v. Jackson, 8 Cow. (N. Y ''Lloyd v. Fulton, 91 U. S. 485; 
 
 180. Holden v. Burnham, 63 N. Y. 74; 
 
 'Lee n Cal. 828; Beecher Dunlap v. Hawkins, 59 N. Y. 342; 
 
 v. <'lark. 12 Blatchf. 256; Laughton v. Dminebaum v. Tinslev. 54 Tex. 365. 
 
 Harden, 68 Me. 318;Mohawk Bank v. 'City Nat. Bank v. Hamilton. 34 N. 
 
 Uwater, .1 Bitchcock J. Eq. 160. Compare McCanless v. 
 
 ■■. Kielj . 11 Conn. 611; ( larterv. Grim- Flinchurn, 89 N. C. 373. 
 19 V II loo. s..,. Chap. XIV.
 
 § 20Q VALUABLE CONSIDERATION. ^jy 
 
 a voluntary conveyance, subsequent creditors of the cor- 
 poration cannot question the transaction. 1 If, as we have 
 seen, it was made with the design to defraud subsequent 
 creditors, this will render it fraudulent. It must be 
 remembered, however, that in New York the question of 
 fraudulent intent is in all cases to be deemed a question 
 of fact, and not of law, and it is declared that no convey- 
 ance or charge shall be adjudged fraudulent as against 
 creditors or purchasers solely on the ground that it was 
 not founded on a valuable consideration. 2 It is not 
 per se void even as to existing creditors, 3 and the burden 
 of proof that the deed left the debtor insolvent is on the 
 plaintiff. 4 In California the New York rule prevails, and 
 a voluntary conveyance is not presumptively fraudulent 
 even as against existing creditors. 5 
 
 § 209. What is a valuable consideration? — Much has been 
 said concerning the true import of the expression " a valu- 
 able consideration." It may be other than the actual 
 payment of money, and may consist of acts to be done 
 after the conveyance, or of a note on promise to pay, 7 
 or of a pre-existing debt, 8 or of an assumption of lia- 
 bility. 9 A moneyed consideration for an assignment 
 of goods greatly disproportionate to the value of the 
 property transferred, would not take a conveyance out 
 
 1 Graham v. Railroad Company, 102 N. E. Rep. 105. See also Phelps v. 
 U. S. 148; Rudy v. Austin, 56 Ark. Smith, 116 Ind. 387, 17 N. E. Rep. 602, 
 73, 19 S. W. Rep. 111. 19 Id. 156. 
 
 2 Babcock v. Eckler, 24 N. Y. 629 : 5 Windhus v. Boot/., 92 Cal. 617, 
 Dunlap v. Hawkins, 59 N. Y. 345 ; 28 Pac. Rep. 557 : Bull v.« Bray. 89 
 Dygert v. Remerschnider, 32 N. Y. Cal. 286, 26 Pac. Rep. 873. 
 
 629. Compare Coleman v. Burr, 93 6 Stanley v. Schwalby, 162 U. S. 376, 
 
 N. Y. 31; Genesee River Nat. Bank v. 16 S. C Rep. 754. 
 
 Mead, 92 N. Y. 637; Emmerich v. ' Weaver v. Nugent, 72 Tex. 278, 10 
 
 Hefferan, 21 J. & S. (N. Y.) 101; Jack- S. W. Rep. 458. 
 
 son v. Badger, 109 N. Y. 632, 16 N. E. 8 McMurtrie v. Riddell, '.» I !ol. 197, 
 
 Rep. 208. 13 Pac. Rep. 181; Redpath v. Law- 
 
 3 Dygert v. Remerschnider, 32 N. Y. rence, 42 Mo. App. 101. 
 
 629. 9 Smith v. Spencer, ?:: \l.-i. 299; 
 
 4 Kain v. Larkin, 131 N. Y. 300, 30 Page v. Dillon (Vt.) 18 Atl. Rep. 814.
 
 VALUABLE CONSIDERATION. §209 
 
 of the statute against covinous alienations. The con- 
 sideration must be adequate ; not that the courts will 
 wt-i'li the value of the eoods so ld an d the price received 
 in very nice scales, but after considering all the circum- 
 stances they will hold that there should be a reasonable 
 and fair proportion between the price and the value. 
 Cases in which the question of inadequacy of consider- 
 ation arises between the grantor and grantee of a deed, 
 where suit is instituted for the purpose of setting aside 
 the grant on the ground of imposition, are not applicable 
 in determining a question of the fairness of a consider- 
 ation between a vendee and creditor under the statute 
 concerning fraudulent conveyances. Such inadequacy of 
 consideration as would induce a court to set aside a con- 
 veyance at the instance of the grantor on the ground of 
 imposition, presents an entirely different question from 
 that degree of inadequacy which would avoid an assign- 
 ment on the ground of fraud, in a suit instituted by 
 a creditor or purchaser against the alleged fraudulent 
 assignee. A grantor must of necessity make out a stronger 
 case, calling for the interference of the courts, than a 
 creditor, because the latter is not a participant in the trans- 
 action, is guilty of no negligence or fraud, and belongs to 
 a favored class. Unreasonable inadequacy of price is 
 evidence of a secret trust, and it is said to be prima facie 
 evidence that a conveyance is not bona fide if it is accom- 
 panied with any trust. 1 In Cook v. Tullis ~ the court ob- 
 served that " a fair exchange of values may be made at 
 any time, even if one of the parties to the transaction be 
 insolvent." 8 
 
 It is said in the New York Court of Appeals that a 
 valuable consideration is something mutually interchanged 
 between the parties, and that it is not necessary that the 
 
 KuykendaU v. McDonald, 15 Mo. 18 Wall. 340. 
 
 »See Stewart v. Piatt, 101 U. S. 738.
 
 § 2IO LOVE AND AFFECTION. $Jij 
 
 subject-matters should be of equal values. 1 An assump- 
 tion by a surety of the debt of his principal constitutes a 
 valuable consideration." It is also established that a 
 gratuity cannot be subsequently converted into a debt so 
 as to become the consideration of a conveyance made by 
 the grantor to the injury of his creditors. 3 A covenant 
 from which the covenantor may be relieved by reason of 
 the failure of the transfer for which it was made is not a 
 valuable consideration. 4 An insignificant or practically 
 nominal consideration will not make the vendee a pur- 
 chaser for valuable consideration under the New York 
 Recording Act. 5 
 
 § 210. Love and affection.— In Mathews v. Feaver 6 Sir 
 Lloyd Kenyon said : " This is a transaction between the 
 father and the son, and natural love and affection is men- 
 tioned as part of the consideration, upon which, as against 
 creditors, I cannot rest at all. It is true it is a consider- 
 ation which, though not valuable, is yet called meritorious, 
 and which in many instances the court will maintain, but 
 not against creditors." Natural love and affection is a 
 sufficient consideration 7 for a gift or voluntary transfer 
 between a brother and a sister, 8 but as a general rule a 
 conveyance for such a consideration cannot be supported 
 against the rights of existing creditors. 9 It was said in 
 
 1 Dygert v. Remerschnider, 32 N. Y. Yardley v. Torr, 67 Fed. Rep. 857. In 
 642. Scott v. Davis, 117 Ind. 233, 20 N. E, 
 
 2 Pollock v. Jones, 96 Ala, 492, 11 Rep. 139, the court says: "A convej 
 So. Rep. 529. ance is not fraudulent because the 
 
 3 Clay v. McCally, 4 Woods 605. purchaser, in addition to the con- 
 
 4 Arnold v. Hagerman, 45 N. J. sideration paid in money and notes 
 Eq. 200, 7 Atl. Rep. 93. to third persons, agrees to support Ins 
 
 s Ten Eyck v. Witbeck, 135 N. Y. father and mother during their life- 
 
 40, 31 N. E. Rep. 994. time; nor does such an agreement 
 
 6 1 Cox Eq. Cas. 278. 280. constitute a secret trust invalidating 
 
 7 See Bliss v. West, 58 Hun (N. Y.) the conveyance, in cases where it is 
 75, 11 N. Y. Supp. 374. otherwise supported l>> an adequate 
 
 8 Anderson v. Dunn, 19 Ark. 658. consideration, anil the grantee is not 
 
 9 Moreland v. Atchison, 34 Tex. 351; [guilty of fraud."
 
 ;8o 
 
 LOVE AND AFFECTION. 
 
 §2IO 
 
 H hide's Lessee v. Longworth, 1 and the rule is still good, 
 that "a deed from a parent to a child, for the consider- 
 ation of love and affection, is not absolutely void as 
 against creditors. It may be so under certain circum- 
 stances ; but the mere fact of being in debt to a small 
 amount would not make the deed fraudulent, if it could 
 be shown that the grantor was in prosperous circum- 
 stances, and unembarrassed, and that the gift to the child 
 was a reasonable provision according to his state and con- 
 dition in life, and leaving enough for the payment of the 
 debts of the grantor." The same principle appertains 
 generally to conveyances founded upon such consider- 
 ation. 2 A conveyance by a husband to a wife, made in 
 consideration of love and affection and her promise to 
 pay certain preferred claims and to support him, will not 
 be upheld against creditors. 3 
 
 1 11 Wheat. 213. The same rule 
 applies to a conveyance to an illegiti- 
 mate child. An<ni\ iiimis, 1 Wall, .Jr. 
 107, 1 Fed. Cases, 1027. 
 
 Good and valuable considera- 
 tion. — Judge Story observes (1 Story's 
 Eq. Jur. i 354) : " A good considera- 
 tion is sometimes used in the sense 
 <>f a consideration which is valid in 
 point of law : ami then it includes a 
 meritorious as well as a valuable con- 
 sideration. Bodgson v. Butts, 3 
 Cranch 140; Copis \. Middleton, 2 
 Madd. 430 ; Twyne's Case, 3 Rep. 81, 
 2 Coke 212; Taylor v. Jones, 2 Atk. 
 601 : Newland on < lontracts, <•. 23, 
 p, 386; Partridge v. Gopp, Ambler 
 599, I Eden, 167, 168; Atherley 
 on Mar. Sett. <■. L3, pp.191, 192. But 
 it i- more frequently used in a sense 
 contradistinguished from valuable; 
 and then it imports m consideration 
 of blood or natural affection, a-, when 
 :i man grants an estate to a near re- 
 lation, merely Founded upon motives 
 
 ! ' pi lldence and natural 
 
 duty. A valuable consideration is 
 such as money, marriage, or the like, 
 which the law esteems as an equiva- 
 lent given for the grant, and it is 
 therefore founded upon motives of 
 justice. 2 Black. Com. 297, 1 Fonbl. 
 Eq. B. 1, c. 4, § 12, note. Deeds 
 made upon a good consideration only 
 are considered as merely voluntary ; 
 those made upon a valuable con- 
 sideration are treated as compensa- 
 tory. The words 'good considera- 
 tion' in the statute may be properly 
 construed to include both descrip- 
 tions ; for it cannot be doubted that 
 it meant to protect conveyances made 
 hinia fide and for a valuable con- 
 sideration, as well as those made 
 bona fide upon the consideration of 
 blood or affection. Doe v. Routledge, 
 Covvp. 708, 710, 711. 712; Copis v. 
 Middleton, 2 Madd. 430 ; Hodgson v. 
 Butts, :', ('ranch, 140; Twyne's Case, 
 3 Rep. 81, 2 Coke 812." 
 
 a Park v. Battey, 80 Ga. 353, 5 S. E. 
 Rep. 492.
 
 §§ 211, 2Iia TRANSFER FOR GRANTOR'S BENEFIT. 381 
 
 § 211. Transfer for grantor's benefit. — As w as observed 
 by Peck, J., in Stanley v. Robbins, 1 one cannot transfer 
 his property " in consideration of an obligation for sup- 
 port for life, or perhaps for support for any considerable 
 length of time, unless he retains so much as is necessary 
 to satisfy existing debts, 3 even if he acts in good faith. 8 
 In Crane v. Stickles, 4 the court said : " It seems, that one 
 week before the plaintiff's note fell due, they took a 
 sweeping sale of all the property of which the defendant 
 was possessed, real and personal, and obligated them- 
 selves that they would support her for the same, as the 
 only consideration, paying nothing, and agreeing to pay 
 nothing, only by way of support — and leaving nothing 
 for the payment of debts. Now if the law would tolerate 
 a proceeding like this, any person, having the means, 
 may make ample provision for himself and family during 
 life, at the expense of his creditors. But that would not 
 be permitted." But it has been held in some cases that, 
 where such support had actually been given during a 
 number of years, the conveyance will be upheld, if no 
 actual fraud was intended. 5 
 
 § 211a. Exchange of property. — Converting property 
 into a new or different form is a favorite subterfuge of 
 debtors. In Billinos v. Russell, 6 the New York Court 
 of Appeals says : " Other situations can readily be con- 
 ceived where the transfer of property, for a valuable con- 
 sideration, may be made the cover for fraudulent prac- 
 
 1 36 Vt. 432. 4 15 Vt. 257. 
 
 2 See Crane v. Stickles, 15 Vt. 252 ; fl Hisle v. RudasiU, 89 Va. 519, Hi 
 Briggs v. Beach, 18 Vt. 115 ; Wood- S. E. Rep. 673 ; Hays v. Montgomery, 
 ward v. Wyman, 53 Vt. 647 ; Tyler v. 118 Ind. 91. 20 N. E. Rep. 646 ; Eelsej 
 Tyler, 126 111. 525, 521 N. E. Rep. 616 ; v. Kelley, 63 Vt. 41, 22 Ail. Rep. 59? ; 
 Pease v. Shirlock, 63 Vt. 622, 22 Atl. Keener v. Keener, 34 W. Va. 131, Hi 
 Rep. 661. But see Chandler v. Par- S. E. Rep. 729. 
 
 sons, 100 Mich. 313, 58 N.W. Rep. 1011. ''101 N. Y. 2:11. I N. G. Rep. 
 
 3 Davidson v. Burke, 143 111. 139, 531. 
 32 N. E. Rep. 514.
 
 ANTE-N1 PTIAL SETTLEMENT. §212 
 
 tices. Exchanges by which one kind of property is 
 converted into another more easily concealed or trans- 
 ported ; the incumbrance of visible and unavailable 
 property, and the retention of that which is convertible, 
 or even the reverse of this, and other cases, where the 
 ao-oreo-ate value of the debtor's property is not dimin- 
 ished, but an apparent obstacle to a creditor's proceed- 
 ings is created, are among the methods by which frauds 
 may be perpetrated, by an insolvent debtor." 
 
 §212. Ante-nuptial settlement — Marriage as considera- 
 tion. - An ante-nuptial settlement, though made by the 
 intended husband with the design of defrauding his cred- 
 itors, will not be set aside in the absence of the clearest 
 proof of the wife's participation in the fraud, 1 even though 
 the husband be insolvent at the time of the settlement.- 
 In Magniac v. Thompson, 3 the court said : " Nothi-ng can 
 be clearer, both upon principle and authority, than the 
 doctrine that to make an ante-nuptial settlement void, as 
 a fraud upon creditors, it is necessary that both parties 
 should concur in, or have cognizance of, the intended 
 fraud. If the settler alone intended a fraud, and the 
 other party have no notice of it, but is innocent of it, she 
 is not and cannot be affected by it. Marriage, in con- 
 templation of the law, is not only a valuable considera- 
 tion to support such a settlement, but is a consideration 
 of the highest value, 4 and from motives of the soundest 
 policy is upheld with a steady resolution" The courts 
 are averse to annulling such a settlement, because there 
 can follow no dissolution of the marriage which was the 
 
 Prewil v. Wilson, L03 U. S. 32. L94; Wright v. Wright, 59 Barb. (N. 
 
 199. Y.) 50.-, ; affi'd 54 N. Y. 437 ; Comer v. 
 
 • Nance v. Nance, ^1 Ala :;:.-,. I So. Allen, 72 Ga. 12 ; Cohen v. Knox. 90 
 
 Rep. 699 Gal. 266, 27 Pac. Rep. 215. 
 
 ; Pet. 34H 393; approved and * Tolman v. Ward, 86 Me. 305, '- )( .> 
 
 adopted in Prewil v. Wilson, L08 U. Ail. Rep. 1081. 
 . 34; Frank's Appeal, 59 Pa. St.
 
 § 212 ANTE-NUPTIAL SETTLEMENT. 383 
 
 consideration for it. 1 The marriage subsists in full force, 
 even though one of the parties should forever be ren- 
 dered incapable of performing his or her part oi the 
 marital contract. 2 
 
 Marriage is not only a valuable consideration, but, as 
 Coke says, there is no other consideration so much 
 respected in the law." The wife is deemed to be a pur- 
 chaser of the property settled upon her in consideration oi 
 the marriage, and she is entitled to hold it against all claim- 
 ants. 4 In Sterry v. Arden, 5 Chancellor Kent observed : 
 " The marriage was a valuable consideration, which fixed 
 the interest in the grantee against all the world ; she is 
 regarded from that time as a purchaser, and as much so as 
 if she had then paid an adequate pecuniary consider- 
 ation It is the constant language of the books, and 
 
 of the courts, that a voluntary deed is made good by a sub- 
 sequent marriage, and a marriage has always been held to 
 be the highest consideration in law.'" 1 It is unnecessary 
 to dilate upon this branch of the subject. Where the 
 wife participated in the fraudulent intent and scheme, the 
 transaction may, of course, be annulled. 7 The difficulties 
 of implicating the wife in the fraudulent scheme are from 
 the very nature of things often insuperable. Our meaning 
 is illustrated by the language of Mr. Justice Field in a 
 case which we have frequently cited : " It is not at 
 
 1 Prewit v. Wilson, 103 U. S. 22; 4 Herring v. Wickham, 29 Gratt. 
 Barrow v. Barrow, 2 Dick. 504 ; Nairn (Va.) 628; Clay v. Walter, :'•' Va. 96. 
 t. Prowse, 6 Ves. 752; Campion v. 5 1 Johns. Ch. (N. Y) 260 271 : 
 Cotton, 17 Ves. 264 ; Sterry v. Arden, affi'd Verplank v. Sterry, 12 Johns. 
 1 Johns. Ch. (N. Y.) 261 ; Herring v. (N. Y.) 536. 
 
 Wickham, 29 Gratt. (Va.) 628; An- "Jones' Appeal, 62 Pa. St. 324; 
 
 drews v. Jones, 10 Ala. 400. Armfield v. Aruafield, Freem. Ch. 
 
 2 Herring v. Wickham, 29 Gratt. (Miss.) 311 ; Smith v. Allen, 5 Allen 
 (Va.) 635. (Mass.) 454 : Andrews v. .Jours. 10 Ala. 
 
 3 See Bishop's Law of Married Wo- 400 : Barrow v. narrow. 2 Dick. 504. 
 men, 775, 776 : Magniac v. Thompson, ' Ex parte McBurnie, 1 DeG., M. & 
 7 Pet. 348; Dygert v. Remerschni- G. 441 ; Fraser v. Thompson, IDeG 
 der, 32 N. Y. 642 : Prewit v. Wilson, & J. 659. 
 
 103 U. S. 24.
 
 J84 ANTE-NUPTIAL SETTLEMENT. § 212 
 
 all likely, judging from the ordinary motives governing 
 men. that, whilst pressing his suit with her, and offering 
 to settle property upon her to obtain her consent to the 
 marriage, he informed her that he was insolvent, and 
 would, by the deed he proposed to execute, defraud his 
 creditors. If he intended to commit the fraud imputed to 
 him, it is unreasonable to suppose that he would, by 
 unfolding his scheme, expose his true character to one 
 whose good opinion he was at that time anxious to secure. 
 If capable of the fraud charged, he was capable of deceiv- 
 ing Mrs. Prewit as to his pecuniary condition. She states 
 in her answer that she knew he was embarrassed and in 
 debt, but to what extent, or to whom, she did not know, 
 and that it was because of the knowledge that he was 
 embarrassed that she insisted upon his making a settle- 
 ment upon her." ' This is perhaps an extreme case, but 
 it illustrates the statement already advanced, that the 
 creditor will be forced to travel a thorny pathway to annul 
 an ante-nuptial settlement. It is sometimes urged that 
 the courts should not encourage a practice the result of 
 which is, so to speak, to allow a man to barter for a wife 
 for a pecuniary consideration.' This is scarcely a fair 
 view of the transaction. By marriage the woman assumes 
 new duties and responsibilities ; forsakes a home to which 
 the marriage will ordinarily unfit her to return ; promises 
 to live with her husband, and to bear her share of the 
 burdens and cares of the family. Surely in assuming 
 these responsibilities she is entitled to guard against pov- 
 erty and distress. In Piper v. Hoard, 3 the court says : 
 '• There are some anomalies in the law relative to con- 
 tracts or negotiations having marriage for their consid- 
 
 Prewil v. Wilson, 103 U.S. 23, negroes, as he would sell a lamb for 
 
 "There i certainly something the shambles." Davidson v. Craves 
 
 repulsive in tb< idea of a parenl Riley's (S. C.) Eq. 236. 
 
 ring off an amiable and accom- lo? N. Y. 77, 13 N. E. Rep. 626. 
 pushed daughter for lands and
 
 § 213 ILLICIT INTERCOURSE. $85 
 
 eration, and such contracts are based upon considerations 
 which obtain in no other contract. The family relations 
 and their regulation are so much a matter of public policy 
 that the law in relation to them is based on principles not 
 applicable in other cases ; and all business negotiations 
 having marriage for their end are regarded in much the 
 same light by our courts." 
 
 § 213. Illicit intercourse. — A contract the consideration of 
 which is future illicit cohabitation is said to be utterly 
 void. 1 But a conveyance in consideration of past cohabi- 
 tation, intended or regarded as reparation or indemnity 
 for the wrong done, is treated at common law as founded 
 on a good consideration, and may be upheld. 2 A trans- 
 fer, however, to a mistress or her children, by way of gift 
 or advancement, although not looking to future cohabi- 
 tation, and intended merely as a provision for mainte- 
 nance, is invalid as against existing creditors. 3 This 
 distinction is manifestly important. In Wait v. Day 4 
 the court said, that although the debtor " may have been 
 under no legal liability to the defendant, yet if he paid the 
 money in discharge of what he deemed a moral obligation 
 to indemnify the defendant against the consequences 
 which had already resulted from their illicit intercourse, I 
 think the case would not be within the statute. He had 
 made her the mother of two illegitimate children, and was 
 at liberty to refund the money which she had already 
 expended for the necessary support and education of 
 those children. Where there is an existing obligation, 
 either legal or moral, to pay so much money, and the pay- 
 ment is not made with any reference to the future, 
 nor by way of mere gratuity, the case is not within the 
 mischief against which the legislature intended to pro- 
 
 1 Potter v. Gracie, 58 Ala. 305; * Potter v. Gracie, 58 Ala. 805. 
 Jackson v. Miner, 101 111. 559. "4 Den. (N. Y.) 439, 441. 
 
 3 Ibid. 
 
 25
 
 ILLEGAL CONSIDERATION. §§ 214, 21 5 
 
 vide." The same principle was applied in Fellows v. 
 Hmperor. 1 In that case the grantee had been deceived 
 into a marriage with the grantor, and had innocently lived 
 with him for years, supposing she was his lawful wife. It 
 subsequently transpired that he had another wife living, 
 whereupon she left him. The court, in sustaining the 
 conveyance, held that the grantor was under the strongest 
 moral, if not legal obligation, to compensate the grantee 
 for her services, and to indemnify her as far as he could in 
 a pecuniary point of view, against the consequences of 
 his fraudulent and illegal acts. The conveyance was 
 upheld against creditors. 2 
 
 ^ 214. Illegal consideration. — One who has freely paid 
 his money upon an illegal contract is particeps criminis, 
 and no cause of action arises in his favor upon an implied 
 promise to repay it. But when an insolvent debtor, or one 
 in embarrassed circumstances, pays his money upon such 
 illegal consideration, he stands, in relation to his creditors 
 in the same position as if he had made a voluntary con- 
 veyance of his property. In contemplation of law he has, 
 in fact, parted with his money for no consideration, 3 
 because it is no consideration which can be set up in a 
 court of law. 1 
 
 ^ 215. Moral obligations. — A debtor may acknowledge 
 and prefer a claim barred by the statute of limitations, 5 
 and such conduct is not conclusive evidence of a want of 
 
 L3 Barb. (N. ^ 312; Kessinger \. kVssinger, 37 Ind. 
 
 Improper influences. — Convey- 841. See §13 and note on "Undue 
 
 ances made by a dissolute man to a Influence," giving the substance of 
 
 prostitute, who had a strong influence the opinion in Shipman v. Furniss, 
 
 biin, may be annulled. Shipman 69 Ala. 555. 
 
 I hi m--. 69 Ala. 555, and ca 1 Story's Eq. §§ 353, 354 ; Clark v. 
 
 cited, it Am. Rep. 528, and the Gibson, 12 N. H. 386. 
 
 learned note of [rving Browne, Esq., Weeks v. Bill, 38N. II. 305. 
 
 ••'i p. 537; also Leighton v. Orr, 11 Manchester v. Tibbetts, 121 N. Y. 
 
 Dean v. Negley, 11 Pa. St. 219, 'J I N. E. Rep. 304.
 
 § 2l6 COPARTNERSHIP DEBTS. 387 
 
 good faith; 1 and he is not bound to set up the statue of 
 frauds; 2 and an agreement by a husband to convey cer- 
 tain lands to his wife in consideration of her relinquishing 
 an inchoate interest in his lands, which she carried out, is 
 founded upon a valid consideration which the husband had 
 a right to discharge. 3 So it is not absolutely necessary 
 to the bona fides of a charge of interest in an account, that 
 it should be of such a character that it mi^ht be recov- 
 ered in a suit at law brought by a creditor against his 
 debtor. There are many dealings amongst men in which 
 interest is habitually charged and paid, when it could not 
 be claimed on the ground of strict legal right. These 
 transactions are regarded as fair and just as between the 
 parties, and they cannot be considered fraudulent as to 
 others. 4 
 
 § 216. Individual and copartnership debts. — One partner, 
 it is asserted, cannot usually make a valid transfer of firm 
 property in payment of his individual debt without the 
 consent of his copartner. 5 It is said that every one is 
 bound to know that a partner has no right to appropriate 
 the partnership property to the payment of his individual 
 debts, and if one so deals with him he must run the risk 
 
 1 French v. Motley, 63 Me. 326 ; 3 Brown v. Rawlings, 72 Ind. 505. 
 Keen v. Kleckner, 42 Pa. St. 529 ; But compare Collinson v. Jackson, 8 
 Davis v. Howard, 73 Hun (N. Y.) Sawyer 357. 
 
 347. 26 N. Y. Supp. 194 ; Del Valle v. * Spencer v. Ayrault, 10 N. Y. 205 ; 
 
 Hyland, 76 Hun (N. Y.) 493, 27 N. Y. Wolford v. Farnham, 47 Minn. 95, lit 
 
 Supp. 1059; affirmed without opinion, N. W. Rep. 528. In Missouri one 
 
 148 N. Y. 751, 43 N. E. Rep. 986. But partner may execute a mortgage on 
 
 the fact that the debt is so barred is a firm assets to secure certain firm 
 
 circumstance upon which fraud may claims. Union Bk. v. Kansas Citj 
 
 be predicated. Sturm v. Chalfant, 38 Bk., 136 U.S. 223, 10 S. C. Rep. 1013 
 
 W. Va. 248, 18 S. E. Rep. 451 ; McCon- "Hartley v. White, 94 Pa. St. 36; 
 
 nellv. Barber, 86 Hun (N.Y.) 360, 33 Todd v. Lorah. 75 Pa. St. 155. Se< 
 
 N. Y. Supp. 480. Erb v. West (Miss. » 19 So. Rep. 829 ; 
 
 2 Cresswell v. McCaig, 11 Neb. 227, Brickettv. Downs. 163 Mass. 70, 39N. 
 9 N. W. Rep. 52 ; Cahill v. Bigelow, E. Rep. 776. 
 
 18 Pick. (Mass.) 369. But see Lloyd v. 
 Dutton, 91 U. S. 479.
 
 388 COPARTNERSHIP DEBTS. § 2l6 
 
 of the interposition of partnership rights. 1 This broad 
 proposition is disputed in Schmidlapp v. Currie. 2 The 
 court said : " The firm creditors at large of a partner- 
 ship have no lien on its assets, any more than ordinary 
 creditors have upon the property of an individual debtor. 
 The power of disposition over their property, inherent in 
 every partnership, is as unlimited as that of an individual, 
 and the jus disponendi in the firm, all the members co-op- 
 erating, can only be controlled by the same consider- 
 ations that impose a limit upon the acts of an individual 
 owner, namely, that it shall not be used for fraudulent 
 purposes. So long as the firm exists, therefore, its mem- 
 bers must be at liberty to do as they choose with their 
 own, and even in the act of dissolution they may impress 
 upon its assets such character as they please. The doc- 
 trine that firm assets must first be applied to the payment 
 of firm debts, and individual property to individual debts, 
 is only a principle of administration adopted by the 
 courts, where from any cause they are called upon to wind 
 up the firm business, and find that the members have 
 made no valid disposition of, or charges upon, its assets." 3 
 But if while such prior right of the firm creditors must 
 generally be worked out through the rights of the part- 
 ners as between themselves, still where the transfer of 
 all the partnership assets to one member of the firm is 
 done clearly with the intent of hindering the partnership 
 creditors, their rights will be held to be superior to those 
 of the individual creditors. 4 
 
 A transfer by one of the partners, or a lien created by 
 him on the corpus of the partnership property to pay an 
 
 Id v. Lorah, 76 Pa. St. L5G. Co. v. Bannon, 85 Tenn, 712. 4 S. W. 
 
 600. Rep. 831. 
 
 Roach v. Brannon, 57 .Mi^s. * Arnold v. Second Nat. Bank, 45 
 
 Goodbar v. Cary, 4 Woods N. .1. Eq. 186,17 Atl. Rep. 93; Jack- 
 
 u i I. 99 U.S. 119; son Hank v. Durfey, 72 Miss. 971, 18 
 
 Ids v. Johnson, •">! Ark. 149, 16 S... Rep. 4o6. 
 8. W. Rep. 124 • Carver Gin. & N.
 
 §216 
 
 CI >PARTNERSH] P DEBTS. 
 
 
 individual debt, has been in effect declared in New York 
 to be fraudulent and void as to the creditors of the firm, 
 unless the firm was solvent at the time. 1 The converse 
 of the proposition is not generally admitted. Chief- 
 Justice Ruger said, in Crook v. Rindskopf :~ "It is law- 
 ful for an insolvent member of a firm to devote his 
 individual property to the payment of firm debts, to the 
 exclusion of his individual creditors." 8 Where the members 
 of the partnership are all liable for a debt, although it was 
 originally a debt of one of them only, it is no fraud on the 
 partnership creditors to devote partnership funds to its 
 payment. 4 The mere fact, however, that the money was 
 used for the benefit of the partnership does not make the 
 debt a partnership obligation. 5 It is settled in New 
 York that it is a fraud upon firm creditors for a member 
 of the -firm to take firm property and apply it to his 
 individual debt, or for an insolvent firm to apply firm prop- 
 erty to the payment of the debt of an insolvent partner. 6 
 
 1 Menagh v. Whitwell, 52 N. Y. 
 146 ; Goodbar v. Cary, 4 Woods, 668. 
 See Wilson v. Robertson, 21 N. Y. 
 587 ; Keith v. Fink, 47 111. 272 ; Marks 
 v. Bradley, 69 Miss. 1, 10 So. Rep. 922 ; 
 Cribb v. Morse, 77 Wis. 322, 46 N. 
 W. Rep. 126 ; Taylor v. Missouri Glass 
 Co., 6 Tex. Civ. App. 337, 25 S. W. 
 Rep. 466 ; Hubbard v. Moore, 67 Vt. 
 532, 32 Atl. Rep. 465 ; Cox v. Peoria 
 Mfg. Co., 42 Neb. 660, 60 N. W. Rep. 
 933 ; Collier v. Hanna, 71 Ind. 253 ; 
 Hanford v. Prouty, 133 111. 339, 24 N. 
 E. Rep. 565 ; Sexton v. Anderson, 95 
 Mo. 373, 8 S. W. Rep. 564 ; Reyburn 
 v. Mitchell, 106 Mo. 365, 16 S. W. 
 Rep. 592; Darby v. Gilligan, 33W. 
 Va. 246, 10 S. E. Rep. 400. Compare 
 Case v. Beauregard, 99 U. S. 119 ; 
 Shanks v. Klein, 104 U. S. 18 ; Crook 
 v. Rindskopf, 105 N. Y. 482, 12 N. E. 
 Rep. 174 ; Booss v. Marion, 129 N. Y. 
 
 536, 29 N. E. Rep. 832 ; Smith v. 
 Smith, 87 Iowa 93, 54 N. W. Rep. 73. 
 
 2 105 N. Y. 482. 
 
 8 Citing Dimon v. Hazard, 32 N. 
 Y. 65 ; Saunders v. Reilly, 105 N. Y. 
 12 ; Royer Wheel ('<>. v. Fielding, 101 
 N. Y. 504, 5 N. E. Rep. 431 ; Kirby v. 
 Schoonmaker, 3 Barb. Ch. N. Y. 46. 
 See Citizens' Bank v. Williams, 128 
 N. Y. 77, 28 N. E. Rep. 33. 
 
 4 Citizens' Bank v. Williams, 128 
 N. Y. 77,28N. E. Rep. 33; Nordlinger 
 v. Anderson, 123 N. Y. 544, 25 N. E. 
 Rep. 992. 
 
 6 Roe v. Hume, 72IIun, N. Y. 1, 2:> 
 N. Y. Supp. 576 ; Smith v. Sipperley, 
 9 Utah, 267, 34 Pac. Hop. 54. 
 
 6 Berinheimer v. Rundskopf, 116 N. 
 Y. 428, 22 N. E. Rep. 1074 ; Nordlinger 
 v. Anderson, 123 N. Y. oil. 25 N E. 
 Rep. 992 : Bulger v. Rosa, L19 N. Y. 
 459, 24 N. E. Rep. 8
 
 390 FUTURE ADVANCES. § 217 
 
 In Bulger v. Rosa 1 the court says: "Where an indi- 
 vidual creditor of one of the members of an insolvent 
 firm, knowing of such insolvency, takes a transfer of firm 
 property in payment of his individual debt, his act is not 
 merely a violation of an equitable right of the firm 
 creditors, but it constitutes a fraud under the Statute of 
 Elizabeth.'"" The authorities as to what disposition of 
 individual or of copartnership assets will be upheld as 
 against the respective classes of creditors are not in very 
 satisfactory shape. In some States it is held that an 
 appropriation of firm assets to individual debts by consent 
 of all the partners, is valid, even when the firm is insol- 
 vent. 3 Other cases hold that such appropriation, 
 while not in itself fraudulent, will be set aside if there is 
 an actual intent to defraud firm creditors. 4 It seems per- 
 fectly clear, however, that where the courts get possession 
 of the funds for distribution, the distinction between the 
 rights of the two classes of creditors will be respected 5 
 and preserved. 6 
 
 § 2 i 7. Future advances. — A judgment or mortgage 
 may be taken and held as security for future advances and 
 responsibilities to the extent of the security, when that 
 forms a part of the original agreement between the 
 
 1 119 X. Y. 459, 465, 24 N. E. Rep. N. W. Rep. 181 ; cf. Smith v. Smith, 
 
 87 Iowa 93, 54 N. W. Rep. 73. 
 
 In re Douglass, L. R. TCh. 537; 5 Coffin v. Day, 34 Fed. Rep. 687. 
 
 Kendal v. Wood, L. R. 6 Exch. 243: See § 319 1>. 
 
 Piercy v. Fynney, L. R. 12 Eq. 69; 6 An assignment for the benefit of 
 
 Gallagher's Appeal, 111 I'a. St. 353, creditors, including all the property 
 
 cf Euiskamp \. Moline Wagon <>1' the partners, as members of the 
 
 Co., L21 D". 8. 810, 9 S. C. Rep. 899. firmand individually, should be con- 
 
 \ 1- 1 1 1 - 1 * . . 1 1 _' \ Carr, 116 N. C. 499, Btrued so as to apply partnership 
 
 21 S. K. Rep. 175; Reynolds v. John- assets to partnership debts, and in- 
 
 '-1 \il.. 149, 16' S. w. Rep. 124. dividual assets for individual debts. 
 
 ■ tr an elaborate discussion of this Griffin v. Peters, 133 U. S. 070, 10 8. 
 
 subject, see 18 \m St. Rep. 364 380. < !. Rep. 354. 
 
 • K. II. s v. Flory, 84 Iowa 671, 51
 
 § 217a, 2l8 GIFTS 1 IF CHARITY. 
 
 parties. 1 "It is frequent," says Chief-Justice Marshall, 
 " for a person who expects to become more considerably 
 indebted, to mortgage property to his creditor, as a security 
 for debts to be contracted, as well as for that which is 
 already due." 2 But in order to secure good faith and 
 prevent error and imposition in dealing, it is necessary 
 that the agreement, as contained in the record of the lien, 
 whether by mortgage or judgment, should give all the 
 requisite information as to the extent and character of the 
 contract. 3 A conveyance in consideration of future serv- 
 ices is declared to be void as against existing creditors, ' 
 and creditors may reach money paid to a third party as 
 board money for two years in advance. 5 
 
 § 217a. Gifts to charity. — An insolvent debtor can no 
 more give away his property for a charitable use in fraud 
 of the rights of his creditors than he can to an individual. 
 
 § 218. Services by members of a family. — In the absence 
 of an express agreement the law will not imply a promise 
 to pay a daughter for services rendered in the debtor's 
 family, 7 and a mortgage given to a daughter under such 
 
 1 Truscott v. King, 6 N. Y. 157, and -United States v. Hooe, 3 Cranch 
 
 cases cited ; Robinson v. Williams, 22 89. See Lawrence v. Tucker, 23 How. 
 
 N. Y. 380; Tapiav. Demartini, 77 Cal. 14 ; Leeds v. Cameron, 3 Sumner 492, 
 
 383, 19 Pac. Rep. 641; Boswell v. per Story, J. ; Conard v. Atlantic Ins, 
 
 Goodwin, 31 Conn. 74; Brace v. Ber- Co., 1 Pet. 448. 
 
 dan, 104 Mich. 356, 62 N. W. Rep. 3 Hart v. Chalker, 14 Conn. 1',. The 
 
 568; Holt v. Creamer, 34 N. J. Eq. fact that the debtor is insolvent al the 
 
 188; Griffin v. New Jersey Oil Co., 11 time does not prevent the enforce- 
 
 N. J. Eq. 49 ; Bell v Fleming's Ex'rs, ment of the contract. Exparh Ames, 
 
 12 N. J. Eq. 13; Central Trust Co. v. 1 Low. 561, 1 Fed. Cases 746. 
 
 Continental Iron Works, 51 N. J. Eq. * Lehman v. Bentley, 60 N. Y. Su- 
 
 607, 28 Atl. Rep. 595 ; Mowry v. Agri- per. 473, 18 N. Y. Supp. 778. 
 
 cultural Ins. Co., 64 Hun (N. Y.) 143, I >.iv is v. Briggs, 24 X. Y. Stat< Rep. 
 
 18 N. Y. Supp. 834 ; Barnard v. Moore, 896, 5 N. Y. Supp. 323. 
 
 90 Mass. 274; Robinson v. Consolidated G St. Geor-v's ( ihurch S«.c. v. Branch, 
 
 Real Estate & F. I. Co. 55 Md. 109 ; 120 Mo. 238, 35 S. W. Rep. 818. 
 
 Collins v. Carlile, 13 111.254; McCon- " Miller v. Sauerbier, 30 X. J. Eq. 
 
 nell v. Scott, 67 111. 276; Wilson v. 74; [rish v. Bradford, 64 [owa 303, 
 
 Russell, 13 Md. 496. See Ackerman 20 N. W. Rep. 147; Stumbaugh \. 
 
 v. Hunsicker, 85 N. Y. 50. Anderson, 46 Kan. 541, 26 Pac. Rep.
 
 392 
 
 SERVICE BY MEMBERS OF A FAMILY. 
 
 §218 
 
 circumstances will be held to be without consideration, 
 and fraudulent as against creditors. 1 A conveyance by 
 an insolvent husband to his wife, in pursuance of a con- 
 tract to compensate her for services in taking care of 
 his aged mother, who resided with him, has been held in 
 New York to be invalid and voidable as against creditors. 
 The Court of Appeals of that State decided that the 
 wife, by rendering service to her husband's mother, was 
 simply performing a marital duty which she owed to her 
 husband ; that where she received no payment for the 
 discharge of this duty from the person to whom the serv- 
 ice was rendered, and was entitled to none, and brought 
 no money or property to the husband by her service, she 
 could not stipulate for compensation. 2 Earl, J., said : " It 
 would operate disastrously upon domestic life, and 
 breed discord and mischief, if the wife could con- 
 tract with her husband for the payment of services 
 to be rendered for him in his home ; if she could 
 exact compensation for services, disagreeable or other 
 
 1045 ; Byrnes v. Clarke, 57 Wis. 13, 14 
 X. W. Rep. 815; Ionia Co. Savings 
 Bank v. McLean, B4 Mich. 625, 48 N. 
 w. Rep. 159. 
 
 Gardner's Admr. v. Schooley, 25 
 N. .1. Eq. 150. Sec Ridgway v. Eng- 
 lish, 22 X. J. Law 409; Updike v. 
 Titus. 13 N. J. Eq. 151; Coley v. 
 Coley, 11 X. J. E.j. 350: CTpdike v. 
 Ten Broeck, 32 X. J. Law 105; 
 Prickett v. Prickett, 20 X. J. Eq. 478. 
 The services of a sod after reaching 
 majority were held t<> be a good con- 
 sideration in Graves v. Davenport, 50 
 I ■ 'i . Rep. 881 ; I [eeren v. Batson, 
 28 III. App. 268. Parents may, as 
 against creditors, compensate chil- 
 dren for services. I Inward v. Rynear- 
 Bon, 50 Mich. 309, 15 X. W. Rep. 486, 
 !>•-!- Cooley, •! : Wilson \. McMillan, 
 17.' 
 
 I loleman \ Burr, 93 X. Y. 17, 25 ; 
 
 17 Weekly Dig. (N. Y.) 233. Com- 
 pare Filer v. N. Y. Central R. R. 
 Co., 49 N. Y. 47 : Blaechinska v. How- 
 ard Mission, etc., 130 N. Y. 499. 29 N. 
 E. Rep. 755 ; Coursey v. Morton, 132 
 N. Y. 556, 559, 30 N. E. Rep. 231 ; 
 Suan v. Caffe, 122 X. Y. 320, 25 N. E. 
 Rep. 488 ; Snyder v. Free, 114 Mo. 
 371, 21 S. W. Rep. 847 ; McGarvy v. 
 Roods, 73 la. 363. 35 N. W. Rep. 488 ; 
 Hart v. Flinn, 36 la. 366; McAfee 
 v. McAfee, 28 S. C. 188, 5 S. E. Rep. 
 480 ; Whitaker v. Whitaker, 52 N. Y. 
 368 ; Brooks v. Schwerin, 54 X. Y. 344 ; 
 Birkbeck v. A.ckroyd, 74 N. Y. 
 356; Reynolds v. Robinson, 64 N. Y. 
 589 ; Gable v. Columbus Cigar Co. , 
 140 End. 563, 38 N. E. Rep. 474. As 
 against a subsequent creditor her serv- 
 ices have been held to be a good con- 
 sideration. Daggett, B. & H. Co. v. 
 Bulfer, 82 Iowa 101, 47 N.W. Rep. 978.
 
 §219 PROOF OF CONSIDERATION. 3<j3 
 
 wise, rendered to members of his family ; if she 
 could sue him upon such contracts, and establish them 
 upon the disputed and conflicting testimony of the mem- 
 bers of the household. To allow such contracts would 
 degrade the wife by making her a menial and a servant in 
 the home where she should discharge marital duties in 
 loving and devoted ministrations, and frauds upon credit- 
 ors would be greatly facilitated, as the wife could fre- 
 quently absorb all her husband's property in the payment 
 of her services, rendered under such secret, unknown con- 
 tracts." ! But the husband owes no duty to the wife to 
 render her service in her separate business without com- 
 pensation. 2 Manifestly a father may work for his son, 
 and a debt for wages due by the father to the former will 
 sustain a conveyance. 3 
 
 § 219. Proof of consideration.— In Hanford v. Artcher, 4 
 in speaking of the presumption of fraud arising from a 
 failure to change possession, the court said that, to rebut 
 this presumption, the statute imposed upon the party 
 claiming under a sale or a mortgage, the burden of prov- 
 ing good faith and an absence of any intent to defraud 
 creditors. " Proof of a valuable consideration," said 
 Senator Hopkins, "or an honest debt, is essential to show 
 good faith ; and, if there be no such proof, I take it that 
 the requirement of the statute in this respect is not com- 
 plied with, and that the court may order a nonsuit 
 
 Such proof of consideration, too, must go beyond a mere 
 paper acknowledgment of it. that might be binding 
 between the parties." It is said by Chief-Justice Elliott, in 
 Rose v. Colter, 5 that " if it be shown that a valuable con- 
 sideration was paid for the property, and that when the 
 
 1 See Grant v. Green, 41 Iowa 88: 575, 30 N. W. Rep. 368; State Bank 
 
 Dowell v. Applegate, 8 Sawyer 427. v. Whittle, 48 Mich. 1, 11 X. W Rep. 
 
 4 Third Nat. Bk. v. Guenther 123 756. 
 N. Y. 576, 25 N. E. Rep. 986. 4 4 Hill (N. Y.) 295. 
 
 'Woodhull v. Whittle, 63 Mich. ;, 76Ind. 51K3.
 
 394 EXPLAINING RIXITALS. §§ 220, 221 
 
 sale was made the seller was possessed of property far 
 more than sufficient to pay all his debts, the presumption 
 arising from the retention of possession is plainly over- 
 come." As we have already said, there ought to be a fair 
 and reasonable consideration corresponding to the value 
 of the article sold. 1 When the consideration is large 
 there should be clear proof by the vendee, if his ability to 
 purchase is questioned, of his means, or of the source 
 from which he obtained the money. Absence of evidence of 
 the disposition made by the grantor of the money alleged 
 to have been received becomes a material circumstance. 2 
 
 | 220. Recitals of consideration as evidence. — It is said in 
 Hubbard v. Allen, 3 that when a controversy arises between 
 the grantee and an existing creditor as to the validity of 
 a conveyance, it is a settled rule to regard the recital of a 
 consideration as a mere declaration or admission of the 
 grantor, and not as evidence against the creditor. 4 
 Recitals or statements of consideration in a deed, how- 
 ever specific, will not be sufficient to protect a purchaser 
 where there is any fraud. and, as we shall see, any kind of 
 consideration may be proved. 6 
 
 ^ 22i. Explaining recitals. — A conveyance of land made 
 by a husband to his wife purported to be executed in consid- 
 eration of love and affection, " and for the sum of one 
 
 'State v. Evans, 38 Mo. 150-154; Ala. 137; McCaskle v. Amarine, 12 
 
 Klosterman v. Vader, 6 Wash. 99, 32 Ala. 17; Falkner v. Leith, 15 Ala. 9; 
 
 Pac. Rep. 1055. See§209. Dolin v. Gardner, 15 Ala. 758. See 
 
 'Thompson v. Tower Mfg. Co., 104 Kimball v. Fenner, 12 N. H. 248; 
 
 Ala. 146, 16 So. Rep. 116; Barrell v. Cohnv. Ward, 32 W. Va. 34, 9 S. E. 
 
 Mitchell, 61 AJa. 270 Rep. 41 ; Ball v. Campbell, 134 Pa. St. 
 
 .v.i \l.i. 296; Cohn v. Ward, 32 602, 19 Atl. Rep. 802 ; Childs v. Hurd, 
 
 W. Va. 34, 98. E. Rep. 41 ; Rogers v. 32 W. Va. 66-101, 9 S. E. Rep. 362 : 
 
 Verlander, 30 W, \ : , 619, 5S. E. Rep. De Farges v. Ryland, 87 Va. 408. 128. 
 
 347. E. Rep. 805. 
 
 •Citing McCain v. W I, I Ala. 5 Snyder v. Free, 114 Mo. 368, 21 S. 
 
 Branch Bank of Decatur v. Kin- \V. Rep. ^17. 
 
 ■ McGintrj v. Reeves, L0 B Leach v. Shelby, 58 Miss. 681.
 
 § 221 EXPLAINING RECITALS. 395 
 
 dollar cash in hand paid, the receipt whereof is hereby 
 acknowledged." The court held that, the money consid- 
 eration being manifestly nominal, parol evidence was inad- 
 missible, in an action brought to set aside the deed as in 
 fraud of creditors, to show that there was, in fact, an ade- 
 quate pecuniary consideration. 1 But, in another case, 
 where the consideration expressed in the deed was " five 
 hundred dollars and othergood causes and considerations," 
 it was held competent to prove the consideration of blood.~ 
 This general subject is referred to in Hinde's Lessee v. 
 Longworth, 3 where it was said that if the evidence had 
 been offered for the purpose of showing that the deed 
 was given for a valuable consideration, and in satisfaction 
 of a debt, and not for the consideration of love and affec- 
 tion, as expressed in the deed, it might well be considered 
 as contradicting- the deed. It would then be substituting 
 a valuable for a good consideration, and a violation of 
 the well-settled rule of law, that parol evidence is inad- 
 missible to annul or substantially vary a written agree- 
 ment. 4 The subject was further considered in Betts v. 
 Union Bank of Maryland, 5 a case argued by Reverdy 
 Johnson on one side, and by Roger B. Taney, after- 
 ward Chief-Justice of the United States, on the other, 
 and the conclusion of the court was that marriage can- 
 not be given in evidence as the consideration of a deed 
 of bargain and sale expressed to be made for a money 
 consideration only. 6 A mortgage, the expressed con- 
 
 'rHouston v. Blackman, 66 Ala. 559, 6 Galbreath v. Cook, 30 Ark. 425; 
 
 564 ; Galbreath v. Cook, 30 Ark. 417. Davidson v. Jones, 26 Miss. 63 ; I ' 
 
 See Potter v. Gracie, 58 Ala. 308; v. McCullough, 69 Md. 592, 16 At I. 
 
 Reynolds v. Gawthrop, 37 W. Va. 3, Rep. 453. In Scoggin v. Schloath. 15 
 
 16 S. E. Rep. 364. Ore. 383, 15 Pac. Rep. 635, the court 
 
 2 Pomeroy v. Bailey, 43 N. H. 118. said : "The better rule appears to be 
 
 3 11 Wheat. 214. that if the consideration expressed in 
 
 4 See Cunningham v. Dwyer, 23 Md. the deed is natural love and affection, 
 219. it cannot be shown to have been exe- 
 
 5 1 Harr. & G. (Md.) 175. cuted for a valuable consideration ; or
 
 396 SUFFICIENT CONSIDERATION. § 222 
 
 sideration for which was $1,000, may be explained by 
 showing that it was, in fact, given to secure the mortgagee 
 against liability on two accommodation notes of $500 
 each. 1 The recital that the consideration has been paid 
 may generally be contradicted by parol evidence ; 2 and 
 indeed there seems to be a prevalent tendency in the 
 courts to admit parol proof of the true consideration of 
 a deed in almost every case, 3 though a policy sometimes 
 manifests itself to exclude evidence of consideration dif- 
 ferent in kind from that set forth in the instrument. 
 Manifestly the recitals are not binding upon creditors in 
 any event. 
 
 § 222. Sufficient consideration.— A bond given by a minor 
 son to his father in consideration of permission to leave 
 home and work for himself, or for his board while he 
 remains at home and works on his own account, if bo?ia 
 fide, is neither against the policy of the law nor fraudulent 
 as to creditors. 4 And where a wife advances to her hus- 
 band money to purchase land, under an agreement that 
 the money shall be repaid to her children and its payment 
 
 if voluntary, or on consideration of Perry, 28 Iowa 63 ; Lawton v. Buck- 
 
 marriage and the like, it cannot be ingham, 15 Iowa 22 ; Pierce v. Brew, 
 
 shown that the consideration was a 43 Vt. 295 ; Anthony v. Harrison, 14 
 
 moneyed one. This would be proving Hun (N. Y.) 210; Morris v. Tillson, 81 
 
 by parol that the consideration was 111. 616 ; Taggart v. Stanbery, 2 Mc- 
 
 differenl in kind from that expressed Lean 546 : Wheeler v. Billings, 38 N. 
 
 in the deed, and upon well-considered Y. 264 ; Adams v. Hull, 2 Denio (N. 
 
 authority, is not allowable." Y.)306 ; Miller v. McKenzie, 95 N. Y. 
 
 iMcKinster v. Babcock, 26 N. Y. 578 ; Scoggin v. Schloath, 15 Ore. 383, 
 
 378. See Truscott v. King, 6 N. Y. 15 Pac. Rep. 635. 
 
 147; Lawrence v. Tucker, 23 How. 14. :i Buford v. Shannon, 95 Ala. 211, 
 
 • Bingham v. Weiderwax, 1 N. Y. 10 So. Rep. 263; Leach v. Shelby, 58 
 
 514 : Baker v. Connell, 1 Daly (N. Y.) Miss. 681; McKinster v. Babcock, 26 
 
 470; Altringer v. Capeheart, 68 Mo. N. Y. 380; McCrea v. Purmort, 16 
 
 411 : Miller v. McCoy, 50 Mo. 214; Wend. (N. Y.) 469; Ham v. Van 
 
 Rhine v. Ellen, 86 Cal. 868, 870 ; San- Onlen, 84 N. Y. 257; Hebbard v. 
 
 ford v. Sanford, 61 Barb. (N. Y.) 303 ; Eaughian, 70 N. Y. 54; Baird v. 
 
 \ni..i v. Erie Railway Co., 81 N. Baird, 145 N. Y. 866, 40 N. E. Rep. 
 
 Y i'.'.'l ; Baker v. Union Mutual 222. 
 
 l-if" I"- Co., 18 N. Y. 887 ; Barper v. * Geist v. Geist, 2 Pa. St. 441.
 
 §223 INSUFFICIENT CONSIDERATION. 
 
 secured by mortgage, the contract is valid and may be 
 set up as a defense to a suit charging the husband with 
 mortgaging the lands to his children in fraud of credit- 
 ors. 1 The liability of a surety on a bond for the acts of 
 his principal is a sufficient consideration for a mortgage 
 given as indemnity. 2 
 
 § 223. Insufficient consideration.— A deed from a debtor 
 to his creditor is voluntary and not founded on a sufficient 
 consideration if it is given for a pre-existing debt which 
 was afterward treated by the parties as still due. 3 And, 
 as against creditors of an insolvent, a party cannot make 
 title to his property as a purchaser for a valuable consid- 
 eration, where what purports to be the consideration is a 
 debt against a third person which is found, as matter of 
 fact, to be worthless ; and this is true even though the 
 transaction was in good faith on the part of the vendee. 4 
 So a conveyance in consideration of future services has 
 been held void against existing creditors. 5 
 
 1 Goff v. Rogers, 71 Ind. 459. 3 Oliver v. Moore, 23 Ohio St. 47!) ; 
 
 s State v. Hemingway, 69 Miss. Starr v. Starr, 1 Ohio 321. 
 
 491, 10 So. Rep. 575. See Tudor v. De 4 Seymour v. Wilson, 19 N. Y. 417. 
 
 Long, 18 Mont. 499, 46 Pac. Rep. 5 Lehman v. Bentley, 60 N. Y. 
 
 258. Super. Ct. 478, 18 N. Y. Supp. 778.
 
 CHAPTER XVI 
 
 INDICIA OR BADGES OF FRAUD. 
 
 Suppression or concealment — 
 Not recording — Subsequent 
 fraud. 
 
 Evidence aliunde. 
 
 Concealment in fraud of bank- 
 rupt act. 
 
 Absolute conveyance by way 
 of security. 
 
 Excess of property mortgaged. 
 
 Insolvency. 
 
 Sales upon credit. 
 
 Unusual acts and transactions. 
 
 Effect of relationship upon 
 debtor's transactions. 
 
 Prima fade cases of fraud. 
 
 Comments. 
 
 " Fraud is one of the broadest issues known to the law." — Vann, J., in White v. Benjamin, 150 
 N. V., 265, 11 N. E. Rep. 956. 
 
 224. 
 
 Tlic creditor's embarrassments 
 — Proof of fraud. 
 
 g 235. 
 
 225. 
 
 Badges of fraud defined. 
 
 
 226. 
 
 Question for the jury. 
 
 236. 
 
 227. 
 
 Circumstantial and direct evi- 
 dence. 
 
 237. 
 
 228. 
 
 Recital of fictitious considera- 
 tion. 
 
 238. 
 
 229. 
 
 Antedating instrument. 
 
 238a 
 
 230. 
 
 Description of the property. 
 
 239. 
 
 231. 
 
 Conveyance of whole estate. 
 
 240. 
 
 231a. 
 
 Continued possession. 
 
 241. 
 
 232. 
 
 inadequacy of purchase price. 
 
 242. 
 
 233. 
 
 Transfer pending suit. 
 
 
 234. 
 
 K\ idence of secrecy. 
 
 243. 
 
 234a. 
 
 Secrel trust. 
 
 244. 
 
 § 224. The creditor's embarrassments — Proof of fraud. — 
 The practical difficulties which a creditor encounters in 
 seeking to discover equitable assets, or to reach property 
 fraudulently alienated by the debtor, have already been 
 the subject of comment. 1 A transaction or conveyance 
 having every appearance of fairness and legality, and to 
 which the ordinary presumptions of good faith attach, 2 is 
 usually presented at the threshold of the litigation. The 
 debtor, and the fraudulent alienees acting in collusion 
 with him, will be found, in most instances, to have taken 
 ry pre< aution to hide the evidences and traces of their 
 frauds behind barriers of apparent good faith, 3 and, 
 
 6, 18 v. Schoolfield, 100 U. S. L49, 16 S. C. 
 
 Jones \ . Simpson, 1 L6 I'. Rep. 225. 
 8. 815, 6 s. C. Rep. 588 Bamberger ' Cowling v. Estes, 15 111. A.pp. 201.
 
 §224 creditor's embarrassments. 
 
 
 ordinarily, the guilty participants develop into wit- 
 nesses prolific of plausible statements and ingenious 
 subterfuges devised to uphold the colorable transactions 
 An intent to defraud is not proclaimed or published to 
 the world, but, on the contrary, the usual course of the 
 guilty participants is to give to the contract the appear- 
 ance of an honest transaction, and to have the conduct of 
 the interested parties correspond, as far as possible;, with 
 a bona fide act. 1 Parties practicing fraud naturally and 
 almost uniformly resort to expedients to conceal the evi- 
 dence of it. 2 Fraud always takes a tortuous course, and 
 endeavors to cover and conceal its tracks. 3 Lord Mans- 
 field said : " Hardly any deed is fraudulent upon the mere 
 face of it." 4 Chief-Justice Bricknell observed: "Where 
 a fraud is contemplated and committed upon creditors, 
 concealment of it is the first, and generally the most per- 
 sistent, effort of those who are engaged in it. Publicity 
 would render their acts vain and useless. Leaving direct 
 and positive evidence accessible to those injured by it 
 would be the equivalent of a confession of the culpable 
 intent, and of the defeasible character of the transaction. 
 There are numerous circumstances, so frequently attend- 
 ing sales, conveyances, and transfers intended to hinder, 
 delay and defraud creditors, 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." 5 
 
 The question presents itself, How can a creditor most 
 effectually thwart the deep-laid schemes of the debtor and 
 
 1 Tognini v. Kyle, 15 Nev. 463. Weaver v. Owens, 16 Ore. 301, 18 Pac. 
 
 ' l Sarle v. Arnold, 7 R. I. 585 ; Cowl- Rep. 57!) ; Hickman v. Trout, 83 \ a. 
 
 ing v. Estes, 15 111. App. 261. 491, 3 S. E. Hop. 131 ; State, ex rel. 
 
 3 Marshall v. Green, 24 Ark. 418. Brown v. Mitchell, 102 N. C. 347, '.' 
 
 See § 13. S E. Rep. 702; Earwick v. \V,,i 
 
 "Worseley v. Demattos, 1 Burr, dington, 73 Iowa 302,34 X. W. Rep 
 
 467,484. 868: Williams v. Barnett, 52 Tex. 
 
 6 Thames v. Rembert, 63 Ala. 567 ; 130.
 
 400 PROOF OF FRAUD. §224 
 
 his fraudulent alienees, and overcome the usual presump- 
 tions of honesty and good faith which the parties will 
 invoke? No witness can look into the minds of the parties 
 and thus be able to swear positively that they intended to 
 defraud the creditors of the vendor ; and hence, as we 
 have already shown in this discussion, 1 fraud can gener- 
 ally be established only by facts and circumstances which 
 tend directly or indirectly to indicate its existence. 2 It is 
 said in Maryland : " Although the actions of men can be 
 conclusively proven, the motives which lurk in their 
 bosoms and control their actions are not susceptible of 
 positive proof." Experience shows that positive proof 
 of fraudulent acts is not generally to be expected, and for 
 that reason, amoncx others, the law allows a resort to cir- 
 cumstances as a means of ascertaining the* truth. 4 " A 
 deduction of fraud," says Kent, " may be made not only 
 from deceptive assertions and false representations, but 
 from facts, incidents, and circumstances which may be 
 trivial in themselves, but decisive evidence in the given 
 case of a fraudulent design." 5 " Circumstances altogether 
 inconclusive.' 1 says Clifford, J., G " if separately consid- 
 ered, may, by their number and joint operation, especially 
 when corroborated by moral coincidences, be sufficient to 
 constitute conclusive proof." 7 Or they may be " a link 
 in a chain, which, altogether, is very strong.'' 8 Wills 
 says : 9 " Although neither the combined effect of the evi- 
 
 1 See§ 18. Hendrickson v. People, 10 N. Y. 13, 
 
 5 Thomas v. Sullivan, 13 Nev. 249 ; 81; Moore v. United States, 150 U. S. 
 
 Wbeelden v. Wilson, 44 Me. 18. 60, 14 S. C. Rep. 26. In New York 
 
 •Zimmer v. Miller, 64 Md. 300. 1 Mutual Life Ins. Co. v. Armstrong, 117 
 
 \<l Rep- 358 U. S. 591, 6 S. C. Rep. 877, the action 
 
 'Castle v. Bullard, 2:s Bow. 17'J, involved the obtaining of an insur- 
 
 181 Goshorrj v. Bnodgrass, 1 7 W. Va. ance policy for a fraudulent purpose, 
 
 717. and evidence was admitted that poli- 
 
 - Kent's Com. 184 cies in other companies had been 
 
 tie v. Bullard, 33 Eow. 187. obtained with like intent. 
 
 iderable latitude (mould be B Engraham v. Pate, 51 Ga. 587. 
 
 allowed on the question of motive. » Wills on Circumstantial Ev., p. 278.
 
 § 224 PR! »OF OF FRAUD. 40! 
 
 dence, nor any of its constituent elements, admits of 
 numerical computation, it is undubitable that the proving 
 power increases with the number of the independent cir- 
 cumstances and witnesses, according- to a geometrical pro- 
 gression. 'Such evidence,' in the words of Dr. Reid, 
 ' may be compared to a rope made up of many slender fil- 
 aments twisted together. The rope has strength more 
 than sufficient to bear the stress laid upon it, though no 
 one of the filaments of which it is composed would be suf- 
 ficient for that purpose.' "' It can seldom be the duty of 
 the court to instruct the jury that a single fact will war- 
 rant the jury in finding fraud. All the facts surrounding 
 the transaction must be taken into account collectively.' 
 The attention of the jury should be called to the effect of 
 the evidence as a whole ; it is error to take up each 
 circumstance, one by one, discussing it with the remark 
 that it does not prove the case. 3 The judgment must be 
 based " upon all the circumstances of the particular 
 case." 4 Clear proof leading to a " hearty conviction" is 
 not the test, but rather proof that creates a belief that a 
 fraud has been perpetrated. 5 The frequency with which 
 fraud is practiced upon creditors ; the difficulties of its 
 detection; the powerful motives which tempt an insolvent 
 debtor to commit it ; ° the plausible casuistry by means 
 of which it is sometimes reconciled to the consciences 
 even of persons whose previous lives have been without 
 reproach ; these are the considerations which prevent the 
 court from classing it among the grossly improbable 
 violations of moral duty; and therefore judges often pre- 
 
 1 Citing Reid's Essay on the Intel * Wait v. Bull's Head Bank, 19 X 
 lectual Powers, Chap. III. B. R. 501 ; Cox v. Cox, 39 Kan. 121, 
 
 2 Sleeper v. Chapman, 121 Mass. 17 Par. Rep. 847. 
 
 404-409. 5 Gumberg v. Treusch, L03 Mich. 
 
 3 Montgomery Web Co. v. Dienelt, 543,61 N. W. Rep. 872. 
 133 Pa. St. 585, 19 Atl. Rep. 428. " See § '2. 
 
 26
 
 402 BADGES OP FRAUD. § 225 
 
 sume it from facts which may seem slight. 1 " Fraud," 
 says the Supreme Court of Iowa, "cannot always be 
 shown by direct evidence, but is usually proved by circum- 
 stances. Neither can the knowledge of or partici- 
 pation in fraudulent designs and transactions be 
 proved in many cases except by circumstances." 2 
 The very charge of fraud "implies color and dis- 
 guise, to be dissipated by indicia alone." : The signs 
 or earmarks of fraud instanced in Twyne's Case 4 have 
 already been given, 5 and should be kept fresh in the 
 memory of parties interested in this class of litigation. 
 Mr. Roberts says, that the general conclusion to be 
 derived from this remarkable case is "that evidence of 
 the fraudulent intent supersedes the whole inquiry into 
 the consideration, for no merit in any of the parties to 
 a transaction can save it if it carries intrinsically or extrin- 
 sically the plain characters of fraud." ' 1 1 may be observed 
 that extrinsic proof of fraud can rarely be found unless it 
 be in cases where the possession of a debtor contradicts 
 '' the visible purport of an absolute conveyance." 
 
 § 225. Badges of fraud denned — Badges of fraud are 
 suspicious circumstances that overhang a transaction, 7 
 or appear on the face of the papers. 8 The possible indicia 
 of fraud are so numerous 9 that no court could pretend 
 to anticipate and catalogue them." 1 A single one may 
 
 1 Goshorn v. Snodgrass, 17 W. Va. 'Roberta on Fraudulent Convey- 
 ances, 546. 
 •Craig v.Fowler. 59 Iowa 203, 13 ' Eelms v. Green, 105 N. C. 265, II 
 N. W. Rep. 116. S. E. Rep. 170. 
 
 Water bur j v. Sturtevant, 18 8 Douglass Merchandise Co. v. Laird, 
 Wend. (N. Y.) 853, 362, per Co wen, J.; 37 W. Va. 687, i; S. E. Rep. 188. 
 King v. Moon, 42 Mo. 555. "See Bank v. Gilmer, 116 N. C. 
 
 ; ■■ Rep 80, 2 1 !oke 212). See Davis 685. 22 S. E. Rep. 2. 
 
 bwartz, 155 U S. 639, 15 S. C "> Phinizj v. Clark, 62. Ga. 623-627; 
 
 !■'• p Hickman v. Trout, 83 Va. 191, 3 S. E. 
 
 Rep. i::i : Newman v. Kirk, 45 N. .). 
 Eq. 686, 18 All. Rep. 224.
 
 §225 
 
 B UH.I.s ( if FRAUD. 
 
 [03 
 
 stamp the transaction as fraudulent, and when several are 
 found in combination, strong and clear evidence on tin- 
 part of the upholder of the transaction will be required to 
 repel the conclusion of fraud. 1 " Badges are as infinite in 
 number and form, as are the resources and versatility of 
 human artifice." 2 The statutes of Elizabeth produce the 
 most beneficial effects, by placing parties under a dis- 
 ability to commit fraud in requiring for the characteristics 
 of an honest act such circumstances as none but an honest 
 intention can assume. 3 A badge of fraud was said by 
 Chief-Justice Pearson, in Peebles v. Horton, 4 to be " a 
 fact calculated to throw suspicion on the transaction," 
 and which "calls for explanation." 5 Substantially the 
 same language is used by Elliot, J., in Sherman v. Hog- 
 land. So in Pilling v. Otis, 7 the court, in construing the 
 
 1 Hickman v. Trout, 83 Va. 491, 3 
 S. E. Rep. 131. 
 
 2 Shealy v. Edwards, 75 Ala. 411, 
 417. 
 
 3 McKibbin v. Martin, 64 Pa. St. 
 356; Avery v. Street, 6 Watts (Pa.) 
 274. 
 
 * 64 N. C. 376 ; Shealy v. Edwards, 
 75 Ala. 417 : Terrell v. Green, 11 Ala. 
 213; Hickman v. Trout. 83 Va. 491, 
 3 S. E. Rep. 131. 
 
 5 In Hickman v. Trout, 83 Va. 491, 
 3 S. E. Rep. 131, the court says: 
 " Certain circumstances are often 
 referedto as indicia of fraud, because 
 they are usually found in cases where 
 fraud exists. Even a single one of 
 them may be sufficient to stamp the 
 transaction as fraudulent. When 
 several are found in the same transac- 
 tion, strong and clear evidence will be 
 required of the upholder of the trans 
 action to repel the conclusion of 
 fraudulent intent. In the case here, 
 .... quite a number of the usual 
 badges of fraud are found grouped 
 together and left unexplained. These 
 
 are : gross inadequacy of price ; do 
 security taken for the purchase- 
 money; unusual length of credit for 
 the deferred instalments ; bonds taken 
 payable at Ion- periods, when the 
 pretence is that the deferred instal- 
 ments evidenced by them had already 
 been satisfied in the main by ante- 
 cedent debts due by the obligee to the 
 obligor : the conveyance made in pay- 
 ment of alleged indebtedness of 
 father to son, residing together as 
 members of one family: the indebt- 
 edness and insolvency of the grantor, 
 and well known to the grantee; the 
 threats and pendency of suits: the 
 secrecy and concealmenl of the trans- 
 action ; keeping the deed unacknowl- 
 edged and unrecorded tor over a 
 year; grantor remaining in posses- 
 sion as before the conveyance, and 
 cautioning the kinsman justice, who 
 took the acknowledgment, to keep 
 the matter private, and the relation 
 between grantor ami grantee." 
 
 " 7o I nd. lot. 
 ' 13 Wis. 195.
 
 404 • BADGES I 'I- FRAUD. § 225 
 
 meaning of the expression "badge of fraud" as used in 
 the charge of a judge, said : " It docs not mean that the 
 evidence must be conclusive, nor that it must require the 
 jury to find fraud, but only that it is one of the signs or 
 marks of fraud, and has a tendency to show it. There 
 may be great difference in the weight to which different 
 facts, constituting; badges of fraud, are entitled as evi- 
 dence. One may he almost conclusive, another furnish 
 merely a reasonable inference of fraud. Yet both would 
 be badges of fraud, and either might be so explained by 
 other evidence as to destroy its effect. The books 
 accordingly speak of strong badges and slight badges of 
 fraud, of conclusive badges, and badges not conclusive, 
 meaning by the word ' badge' nothing more than that the 
 fact relied on has a tendency to show fraud, but leaving 
 its greater or less effect to depend on its intrinsic 
 character." The expression is used "to distinguish the 
 lighter grounds on which fraud may be established " as 
 distinguished from the cases where the fraud is apparent 
 upon the lace of the instrument and necessarily involves 
 its invalidity. 1 The circumstances which the law con- 
 siders badges of fraud, and not fraud perse, should, as we 
 shall see, be submitted to the jury, so that they may draw 
 their own conclusions.'-' Where, then, a creditor shows 
 indicia, or badges of fraud, the burden rests on the 
 grantee to repel the presumptions which the facts so 
 shown generated. 8 It may here be observed that when 
 the consideration for the transfer is clearly established, 
 and tin- transaction is in effect a preference, it will not be 
 'ted by any weak, foolish, or even criminal conduct in 
 the way of an attempt to sustain tin; case by manu- 
 factured evidence.* 
 
 Bun-ill 011 Assignments, § :J46. 'Mill v. Bowman, 35 Midi. 191, 
 
 1 10 T< 133. per Cooley, < '. J. 
 
 1 1. 11 pll \. Mitchell, ill Ala. 270
 
 §§226,227 QUESTION FOR THE URN". (.05 
 
 >J 226. Question for the jury. — The question of fraud in a 
 transfer must usually be submitted to a jury,' save in a 
 few cases where the transaction is manifestly fraudulent 
 upon its face. The distinction between legal and equit- 
 able jurisdiction as to this has already been pointed 
 out ; 3 and where the suit is in its nature purely equitable, 
 the judge or chancellor is responsible for the decision, 
 though, of course, he may secure the aid of a jury to pass 
 upon framed issues.' 5 Otherwise the jury must he per- 
 mitted to consider and draw their own inferences from 
 badges of fraud, and the court should not interfere to 
 formulate conclusions for them. 1 To say that badges of 
 fraud "constitute fraud in themselves, would be to carry 
 the doctrine beyond the limits of reason or authority, 
 and to shut out the light of wisdom and truth." 5 Where 
 the entire suit is tried by and submitted to the court, 
 without the aid of a jury, as is frequently the case in 
 equity, the same consideration and effect should be given 
 by the court to badges of fraud as though ajury had 
 been summoned. 
 
 § 227. Circumstantial and direct evidence.— Circumstantial 
 evidence is often the only kind of evidence of which the 
 case admits. In Kempner v. Churchill ~ it appeared that 
 the purchaser said to the debtor : " You had better not 
 delay this matter. You had better let me have the goods 
 
 'Weaver v. Owens, 16 Ore. 304, Herkelratli v. Stookey, <;:'. III. 486; 
 
 18 Pac. Rep. 579; State v. Mason, 112 Kin- v. Russell, 40 Tex. 183. 
 
 Mo. 374, 20 S. W. Rep. 629 ; McKel- ' Wilson v. Lott, 5 Fla. 316. 
 
 lar v. Pillsbury, 48 Minn. 396, 51 N. 6 Bartletl v. Cleavenger, 35 W.Va. 
 
 W. Rep. 222 ; Ferris v. McQueen, 94 719, II S. E. Rep. 273; Goshonfs 
 
 Mich. 367, 54 N. W. Rep 164 ; Ladnier Ex'r v. S Igrass, IT W. Va. ?H 
 
 v. Ladnier, 64 Miss. 373, t So. Rep. Reynold's Admr. v. Gawthrop, 37 W. 
 
 492. Va. L3, 16 S. E. Rep. 364 : Davis S. M. 
 
 2 See§ 51. Co. v. Dunbar, 29 W. Va. 617, 622, 2 
 
 3 Dunphy v. Kleinsmith, 11 Wall. S. E. Rep. 91. 
 
 615. 7 8 Wall. 369. 
 
 4 Leasure v. Coburn, 57 End. 274 ;
 
 
 FICTITK »US CONSIDERATE IN. 
 
 § 228 
 
 and put the money in your pocket, and let the creditors 
 go to the devil." The circumstantial evidence which was 
 held ample to confirm this direct evidence of fraud was 
 as follows : First, false receipts given for full value on 
 Saturday ; second, account of stock made out on Sun- 
 day ; third, removal of the goods into a cellar on Mon- 
 day. " It is true the fraud must be in the inception of 
 the transaction, but the subsequent acts of the parties are 
 calculated to explain the motives which actuated them 
 in the beginning, and give tone to the then original 
 purpose." ' 
 
 £ 228. Recital of fictitious consideration. — Let us now pro- 
 ceed to consider more minutely the particular circum- 
 stances and surroundings of a transaction which constitute 
 badges of fraud, or awaken suspicions or create presump- 
 tions of the existence of fraud. 
 
 A false statement of the consideration of a mortgage, a 
 or of a conveyance 3 or transfer, 4 or the creation of a 
 
 • Adler v. Apt, 31 Minn. 348, 350. 
 
 See Bungerford v. Earle, 2 Vein. 261; 
 
 Blennerhassetl v. Sherman, L05 U. S. 
 
 100; Blackmail v. Preston, 24 111. App. 
 
 24<i : Coates v. Gerlach, 44 Pa. St. 43. 
 
 ' United States v. Griswold, 7 Saw- 
 
 yer 306 . Stinson v. Hawkins, 16 Fed. 
 
 Rep. B50; Patrick v. Riggs, in.-) Midi. 
 
 616 Lynde v. McGregor, 13 Allen 
 
 Mass.) 179 . McKinster \. Babcock, 26 
 
 N. V. 38*2 : Weeden v. Bawes, 10 
 
 I '..mi :>o ; Units v. Peacock, 2:; Wis. 
 
 v.i Blakeslee v. Rossman, 43 Wis. 
 
 123 ; Mason v. Franklin. 58 la. 507, 
 
 12 N. W. Rep. 554 ; Ferris v. McQueen, 
 
 in Mich. ::»;:. :,i N. w. Rep. 164: 
 
 Sanson <. Bean. 51 Minn. 546, 53 N 
 
 w Rep 871 . Rice v. Morner. 64 Wis. 
 
 • N. W. Rep. 668; Beintze v. 
 
 Bentley, ;;i \. .1 Eq 562 ; Benrj v. 
 
 Barrell, :.i Ark 569, 228. W. Rep. 
 
 1 . Berringlon, 7 Ala. 1 12 ; 
 
 • us, 71 I ml. 459 : < lordes \ . 
 
 Straszer, 8 Mo. App. 61 ; Venable v. 
 Bank of U. S., 2 Pet. 112, per Story, 
 J.; King v. Bubbell, 42 Midi. 599, 4 
 N. W. Rep. 440; per Cooley, J. If 
 the actual amount of the debt in- 
 tended to be secured by a deed of 
 trust is more than the actual value of 
 I lie property, it is immaterial that the 
 deed recites that it is given to secure 
 a Larger amount than is actually due. 
 Sawyer v. Bradshaw, 125 111. 440, 17 
 N. F. Hep. 812. See Keith v. Proctor, 
 8 Baxt. (Tenn.) 189 ; Shin-as v. Caig, 
 7 Cranch 50; Dobson v. Snider, 70 
 Fed. Hep. 10; Davis v. Schwartz, 
 155 U. S. 644, 15 S. 
 Wood v. Scott, 55 la. 
 Rep. 465; Taylor v 
 la. 562, 24 N. W. Hep. 40. 
 
 :; Benne v. Schnecko 100 Mo. 2*>0, 
 13 S. W. Rep. 82. 
 
 1 Peebles v. Borton, 64 X. <\ 374 ; 
 Enders v. Swayne, 8 Dana (Ky.) 105 ; 
 
 C. Rep. 237 ; 
 111, 7 N. W. 
 Wendling, 66
 
 §228 
 
 i M ruious 1 1 >nsii ii:k.\ rit i\. 
 
 407 
 
 fictitious or exaggerated ' indebtedness, 2 or a misleading 
 statement as to an encumbrance 3 is a badge of fraud, and 
 is a proper element for the consideration of the jury in 
 determining the bona fides of the transaction. 1 Such a 
 recital does not usually render the instrument voider 
 se, s and in some instances the transaction will be allowed 
 to stand for the amount of the consideration given, 8 and 
 will be void only for the excess 7 So the issuing of an 
 execution for an excessive amount will, in the absence of 
 bad faith, avail the plaintiff to the extent of the debt 
 remaining due. 8 It may be observed here that the 
 recital of the excessive consideration must be inten- 
 tional, and not the result of a mere mistake in computa- 
 tion, 9 and both parties must have participated in the 
 fraudulent purpose. 10 Hence, where a wife is ignorant 
 
 Thompson v. Drake, 3 B. Mon. (Ky.) 
 570 ; Foster v. Woodfin, 11 Ired. (N. 
 C.) Law 346; Gibbs v. Thompson, 7 
 Humph. (Term.) 179 ; Perry v. Hardi- 
 son, 99 N. C. 29, 5 S. E. Rep. 230; 
 Turbeville v. Gibson, 5 Heisk. (Tenn.) 
 565 ; Marriott v. Giveus, 8 Ala. 694 ; 
 Divver v. McLaughlin, 2 Wend. (N. 
 Y.)600; Newman v. Kirk, 45 N. J. 
 Eq. 677, 18 Atl. Rep. 224 ; Bartlett v. 
 Cleavinger, 35 W. Va. 719, 14 S. E. 
 Rep. 273 ; Benne v. Schnecko, 100 Mo. 
 250, 13 S. W. Rep. 82 ; Seger's Sons 
 v. Thomas Bros., 107 Mo. 644, 18 S. 
 W. Rep. 33 ; Harris v. Russell, 93 
 Ala. 59, 9 So. Rep. 541. 
 
 1 Kellogg v. Clyne, 54 Fed. Rep. 
 696, 4C. C. A. 557. 
 
 ' 2 Winchester v. Charter, 97 Mass. 
 140 : Newman v. Kirk, 45 N. J. Eq. 
 677, 18 Atl. Rep. 224. 
 
 3 Newman v. Kirk, 45 N. J. Eq. 
 687, 18 Atl. Rep. 224. 
 
 4 Miller v. Lockwood, 32 N. Y. 299 ; 
 Willison v. Desenberg, 41 Mich. 150, 
 2 N. W. Rep. 201; Lawson v. 
 Alabama Warehouse Co., 80 Ala. 
 343. Elliott, J., said, in Goff v. 
 
 Rogers, 71 Ind. 461: " There are no 
 cases, however, that we have been 
 able to find, going so far as to hold 
 that a mortgage is to be conclusively 
 presumed fraudulent from the bare 
 fact that it purports, on its face, to 
 secure a sum in excess of the debt 
 really due. The farthest thai any of 
 the cases go. except those based on an 
 express statute, is to hold that the 
 fact that a mortgage expresses on its 
 face an amount materially greater 
 than the true amount of indebtedness, 
 is a badge of fraud." 
 
 5 Frost v. Warren, 42 N. V. 207; 
 Barkow v. Sanger, 47 Wis. 505,3 N. 
 W. Rep. 16 ; Cole v. Yancey, 62 Mo. 
 App. 234. 
 
 • Coleyv. Coley, 14 N.J. Eq. 854. 
 
 "Davenport v. Wright, 51 Pa. St. 
 292. See g§ 192, 195. 
 
 8 Harris v. Alcock, 10G. <& .1 (Md 
 227. 
 
 9 Kalk v. Fielding, 50 Wis. 340, 7 
 N. W. Hep. 296. 
 
 10 Carpenter v . Muren, 42 Barb. (N. 
 Y.) 300. See £199.
 
 408 FICTITIOUS CONSIDERATION. §228 
 
 and innocent of fraud, the insertion of an inaccurate or 
 untrue recital in a settlement will not vitiate it. 1 An 
 immaterial misrecital will not be regarded. 2 
 
 It is not our purpose, however, to lead the reader to 
 consider an exaggerated or false recital of consideration 
 as an unimportant factor in proving- fraud. Far from it. 
 In Hawkins v. Alston, 3 Chief-Justice Ruffin forcibly 
 said : " No device can be more deceptive and more likely 
 to baffle, delay, or defeat creditors, than the creating 
 incumbrances upon their property by embarrassed men, 
 for debts that are fictitious or mainly so. The false pre- 
 tense of a debt, or the designed exaggeration of one, is 
 an act of direct fraud." Mr. May observed, that the fact 
 that confession of judgment " covers more property than 
 is necessary, for satisfying the debt, is a suspicious cir- 
 cumstance." 4 Sharswood, J., declared that "a judgment 
 confessed voluntary by an insolvent or indebted man for 
 more than is due, is prima facie fraudulent within the 
 statute of 13 Eliz. c. 5." 5 Then, in Warwick v. Petty, 
 it is asserted that a judgment laid upon property of a 
 debtor for more than was actually due and owing, is a 
 clear violation of the policy of the law, and is fraudulent, 
 and subject to attack by junior creditors. 7 The judg- 
 ment, however, must be knowingly, intentionally, and 
 
 Kevan v. Crawford, L. R. 6 Ch. Tolputt v. Wells, 1 M. & S. 395; 
 
 Benton v. Thornhill, 7 Taunt. 149, 2 
 
 •Fetter v. Cirode, 4B. Mon. (Ky.) Marsh. 127; Hodgson v. Newman, 
 
 l-l ; Norris v. Lake, 89 Va. 518, 16 8. mentioned in Holbird v. Anderson, 5 
 
 B. Rep. 663 ; Schroeder v. Bobbitt, T. R. 236, 239. 
 
 108 Mo. 290, 188. W. Rep. 1093. In 5 Clark v. Douglass, G2 Pa. St. 415. 
 
 Keagj v. Trout, 85 Va. 399, 7 S. E. See Werner v. Zierfuss, 162 Pa. St. 
 
 Rep 829, the court says : " It Deed 860, 29 Atl. Rep. 737. 
 
 onlj be added thai the validity of a II \. J. Law 552. 
 
 deed of trust executed bona fide is ' Clapp v. Ely, 27 N. -J. Law 555. 
 
 no! affected bj the fad thai the Compare Sayre v. Hewes, 32 N. J. 
 
 amount of 1 be debl Becured is nol de- Eq. 652 ; Hoag v. Sayre, 32 N. J. Eq. 
 
 scribed with accuracy ." 552; Holt v. Creamer, 34 N. J. Eq. 
 
 1 [red. Eq (N. C.) 115. is; . Russell v. Wmne, 37 N. V. 596. 
 
 1 M.i . Fraud. < !onv. |». 88 ; 1 iting
 
 §§229,230 ANTEDATING INSTRUMENT. 
 
 fraudulently obtained for a greater sum than was due. 1 
 The same rule applies to a mortgage given lor more than 
 the amount actually due. 3 A transaction which, on its 
 face, speaks an entirely different language from the real 
 one, will always be "viewed by the law with the highest 
 degree of distrust and disapprobation," 3 and will be " the 
 object of doubt and suspicion," ' though, as we have seen, 
 suspicion alone is insufficient to establish fraud."' 
 
 It results, then, from a review of the authorities, that 
 a false recital of consideration in an instrument, in the 
 absence of explanation, justifies a finding of fraud ; that 
 the misrecital must be intentional and not accidental, and 
 is subject to explanation ; and that the evil design must 
 be mutual ; otherwise the transaction will stand against 
 creditors except as to the, excess. 
 
 § 229. Antedating instrument. — Antedating an instru- 
 ment seems to be regarded as an indicium of fraud,'' and 
 testimony tending to establish a fraudulent antedating of 
 a paper is competent. 7 Antedating a mortgage, though 
 very improper, does not, however, affect a mortgagee 
 who is not privy to it. 8 It may be remarked that the 
 date of a deed is not generally regarded as an essential 
 part of the instrument ; it may be good with an impos- 
 sible date, or have no date; and though the date is prima 
 facie evidence of the time of delivery, it may be con- 
 tradicted. 
 
 § 230. Description of the property. — A suspicion or 
 inference of fraud is sometimes predicated of a loose and 
 
 ■Fairfield v. Baldwin, 12 Pick. 8 Ayres v. Husted, 15 Conn. 513. 
 
 (Mass.) 388 : Davenport v. Wright, 51 4 Pickett v. Pipkin, 64 Ala. 520 
 
 Pa. St. 293. Compare Peirce v. Part Sec §§ 5, <i. 
 
 ridge, 3 Met. (Mass.) 4-1; Felton v. "Wright v. Hencock, 3 Munf. (Va.) 
 
 Wadswortli, 7 Cush. (Mass.) 589 521. Bui compare Patterson v. Boden- 
 
 - Hanson v. Bean, 51 Minn. 546, 53 hamer, 9 lied. (N. ( '. 1 Law 96. 
 
 N. W. Rep. 871: Stuart v. Smith ' Moog v. Benedicks, 49 Ala. 513. 
 
 (Tex. Civ. App.. A pi. 5, 1893)21 S. W. s Lindle v. Neville, 13 S. & R (Pa.) 
 
 Rep. 1026. 228.
 
 410 CONVEYANCE OF WHOLE ESTATE. §23] 
 
 vague description of the goods or property conveyed. 
 •• All the entire stock of goods in the possession of the 
 said Lee, in his store in the city of Williamsburg," were 
 the words used in Lang v. Lee, 1 and, in commenting 
 upon the case, the court said : " Does this look like a real 
 bona fide transaction ?" A clause in a mortage by which 
 after-acquired property was attempted to be covered, was 
 regarded as a feature for the consideration of the jury in 
 Gardner v. McEwen. 2 So in a case in Tennessee, 3 in 
 which the description in the conveyance was so indefinite 
 and general that it was impossible to designate the 
 property, this was considered a circumstance to be taken 
 into account by the jury as an evidence of fraud. 4 Still, 
 it does not follow by any means that an imperfect 
 description of property in an instrument is of much 
 weight as a badge of fraud. Carelessness in the character 
 of the description in conveyances of realty, or in bills of 
 sale, or mortgages of personalty, is very common in trans- 
 actions concerning the good faith of which no question 
 can fairly be raised. Misdescriptions are often the handi- 
 work of honest but blundering scriveners. 
 
 § 231. Conveyance of whole estate.— Lowell, J., observes : 
 " I have often decided that the conveyance of the whole 
 property of a debtor affords a very violent presumption 
 of a fraudulent intent, so far as existing creditors are con- 
 cerned." r ° In Bigelow v. Doolittle, however, the court 
 
 3 Eland. 1 Va.) 423. Fredericks, 16 N. J. Eq. 2<i7 ; ('lurk v. 
 
 19 N. ?. 125. Wise, 39 How. Pr. (N. Y.> !)7 : re- 
 
 Overton v. Holinshade, 5 Hoisk. versed, 40 N. Y. 612: MoneU v. Scher- 
 
 T.nn. 683 rick, 54 ill. 270; Redfield v. Buck, 33 
 
 157 Conn 328; Bradley v. Buford, Si I 
 
 In re Alexander, 4 N. B. I;. 181 (Ky.), 12; Reillj v. Barr, 34 W. Va. 
 
 born \. Snodgrass, 17 95, 11 s. E. Rep. 750; Benne v. 
 
 W Va. 717: Glenn v. Glenn, 17 Iowa Schnecko, 100 .M<>. 250, 13 S. W. Rep. 
 
 01 . Hartshorn v. Barnes, 31 Me. 82; Daugherty v. Daugberty, 104 Cal. 
 
 3arle \. Arnold, 7 R. I 582; 221. 37 Pac. Rep. 889; Karll v Kuhn, 
 
 Mitchell v. Mitchell, 42 8. C. 475, 20 38 Neb. 589, 57 X W Rep. 379. 
 
 H 1. Rep. 105; Zimmer v. Miller, 64 »36 Wis. 119. See r.islmp v. Steb- 
 
 00, 1 \tl Rep. 858;Sayre v. bins, 41 Bun (N. V.i 246.
 
 §231 CONVEYANCE OF WHOLE ESTATE. |il 
 
 refused to charge that "the conveyance of the whole 
 property of a debtor affords a very violent presumption 
 of a fraudulent intent, so far as existing creditors arc con- 
 cerned." In sustaining the ruling the appellate court 
 observed that the generality of the conveyance was 
 merely a circumstance to be considered by the jury in 
 connection with all the other facts of the case, in deter- 
 mining whether or not the sale was fraudulent. Lyon, J., 
 said: "Under some conditions the jury might regard 
 such conveyance as raising a very violent presump- 
 tion of fraud, while under other and different conditions 
 the jury might properly determine that it was but a slight 
 indication of a fraudulent intent." 1 Such a transfer 
 must, however, be regarded as altogether unusual and 
 extraordinary. The instances in which such transactions 
 would occur in the usual course of business are very infre- 
 quent, and when the alienation proceeds from an embar- 
 rassed debtor, it creates a presumption of dishonesty and 
 fraud. 3 The transfer, however, is not to be declared void 
 as matter of law under such circumstances. Hence a 
 sale by an insolvent debtor of all his real and personal 
 estate, taking back notes payable in six, twelve and 
 eighteen months, is not per se fraudulent ; to avoid it 
 there must be a finding of an actual fraudulent intent." 
 When questions of relationship intervene, the motive for 
 making these absolute conveyances becomes important. 
 Hence where, pending a suit, a debtor transferred all his 
 
 1 Bigelow v. Doolittle, 36 Wis. 119; the burden in such eases to prove 
 
 s. P. Kerr v. Hutchins, 46 Tex. 389- that such debt was not a bona fide 
 
 390. one is on the creditor. Basie v. Con- 
 
 8 See Bibb v. Baker, 17 B. Mon. nor. 5:', Kan. 71:'., :,7 Pac Rep. 128 
 
 (Ky.), 305; Wbeelden v. Wilson, 44 But see contra, Lehman v. Green hut, 
 
 Me. 30; Hughes v. Roper, 42 Tex. 126; 88 Ala. 47s, 7 So. Rep. 299. 
 
 Ex parte Ames, 1 Low. 501, 1 Fed. 'Clark v. Wise, 16 N. Y 612. See 
 
 Cases, 746; Beels v. Flynn, 28 Neb. Bigelow v. Doolittle, 36 Wis. 119; 
 
 580, 44 N. W. Rep. 732. Itisotherwise Alton v. Harrison, I.. R. 4 Ch. A.pp. 
 
 where the conveyance is made to a 626. Compare Bank of Ga. v. Big 
 
 creditor in payment of a debt, and ginbottom, 9 Pet. 61.
 
 412 CONVEYANCE OB WHOLE ESTATE. .^-31 
 
 property, save that which was exempt, to his wife, and 
 hired out to her for his "board, clothing and lodging," 
 the transaction was held to afford grounds for suspicion, 
 and to call for satisfactory proof of good faith and fair 
 consideration. 1 Commenting upon the effect of the gen- 
 erality of the gift, Mr. May says'- that it is, "when taken 
 in conjunction with other circumstances, a mark of fraud 3 
 for dolus versatur in generalibus , A yet it is no concluding 
 proof either under this statute (13 Eliz. c. 5) or by the 
 common law.""' Then, as we have seen 6 in Twyne's 
 Case, the very first mark of fraud specified was " that the 
 gift was general, without exception of the donor's apparel, 
 or of anything of necessity." Chief-Justice Marshall, in 
 the leading- case of Sexton v. Wheaton, 7 observed : 
 " The proportional magnitude of the estate conveyed 
 may awaken suspicion, and strengthen other circum- 
 stances ; but, taken alone, it cannot be considered as 
 proof of fraud." Among the prominent badges of fraud 
 affecting a conveyance as to subsequent creditors ma)' be 
 mentioned the contracting of debts, and engaging in a 
 hazardous business or speculation, with the intention of 
 shouldering the risk of loss upon creditors. The cases 
 and principles appertaining to this subject have already 
 been considered/ To this class of evidence McCrary, J., 
 adds another badge, viz.: " The fraudulent disposition of 
 the remaining estate of the grantor verv soon after the 
 
 Dresher \. Corson, 23 Flan. 313; 'Citing Twym 3 Rep. 81a : 
 
 Booher \. Worrill, ■",: 6a. 235. See Stone v. Grubham, 2 Bulstr. 225. 
 
 - 1 Sting Chamberlain v. Twyne, F. 
 ■a Fraudulent Conveyances, Moo 638; Nunn v. Wilsmore, 8 T. R. 
 
 [nglise v. Grant, •""> T. I;. ->:;<»: 
 Citing Chamberlain v. Twyne Meux v. Bowell, 4 Easl 1; Janes v. 
 . 1 Moo. 638; Stile- Whitbread, 11 < '. 1'.. 166; Alton v. 
 man v. Aahdown, 2 Atk. 477; Mathews Harrison, L. Ft 1 Ch. App. 622; 
 580 . Ware Evans \. Jones, 11 Jur. | N. S. 784 
 irdner, 1.. I: 7 Eq. :;17. S 
 Blennerh Sherman, 10513 S. ' 8 Wheat. 229, 250. 
 
 »Se<- .7 96, 99, 100.
 
 §§23ia, 232 
 
 CON'IIM I D l'< >SSESSI< 'N. 
 
 ■I 1 5 
 
 conveyance." 1 The conveyance of the greater part <>f 
 
 the assets of a partnership to a corporation formed by 
 the partners in consideration of the issue of stock was 
 held to constitute a badge of fraud where; it was made 
 immediately before an assignment.-' 
 
 § 231a. Continued possession. — Continued possession by 
 the debtor of the property attempted to be conveyed is 
 a circumstance more or less potent as evidence that the 
 debtor retains some hidden form of interest." But an 
 agreement with the creditor made; at the time of. the de- 
 livery of the conveyance that the debtor should remain 
 upon the land to care for the stock kept thereon is not 
 necessarily fraudulent. 4 Such a compact may be entered 
 into in perfect good faith and be susceptible of complete 
 explanation. 
 
 £232. Inadequacy of purchase price. — As has already 
 been shown, to enable a creditor to invalidate a sale of 
 property, tangible facts must be proved, from which a 
 legitimate inference of a fraudulent intent can be drawn 
 It will not suffice to create a suspicion of wrong, nor will 
 the jury be permitted to guess at the truth. 5 Mere proof 
 of inadequacy of price by itself has been considered in- 
 sufficient to implicate the vendee in the fraudulent intent 
 or to impeach his good faith and inadequacy of consid- 
 
 ' Burdick v. Gill, 7 Fed. Rep. 6(38. 
 670. 
 
 - Buell v. Rope, 6 App. Div, (N. Y.) 
 113, 39 X. Y. Supp. 475, cf.; First 
 Nat. Bank v. Wood, 86 Hun (N. Y.) 
 491, 33 N. Y. Sup].. 777. 
 
 ■ See ('hap. XVII. Munson v. Ar- 
 nold, 55 Mich. 134, 20 N.W. Rep. 825; 
 Foster v. Knowles, 42 N. .1. Eq. 226, 7 
 At I. Rep. 290 ; Zimuier v. Miller, Q4 
 Md. 297, 1 Atl. Rep. 858 ; Cooper v. 
 Davison. Si; Ala. :!li7, 5 So. Rep. 650 ; 
 
 Second Nat. Bk. v. Yeatman, ■">:'. Md. 
 II:;. 
 
 1 stroii v. Swafford, si la. 695, 7 1 
 N. W. Rep. 1023. 
 See §§5, 6. 
 
 ' Jaeger v. Kelley, 52 N. 5 
 See Sherman v. Bogland, 7-: [nd. 171 ; 
 McFadden v. Mitchell, 54 Cal. 629; 
 Mathews v. Reinhardt, I 19 III. 635, 37 
 N. E. Rep. 85 ; Shober v. Wheeler, 
 113 X.<\ 378, ISS. E. Rep. 328 ; Bierne 
 v. Ray, -; W. Va. 571, 16 S. E Rt p 
 804. See § 6.
 
 414 INADEQUACY 01 PURCHASE PRICE. §232 
 
 eration, unless extremely gross, 1 does not per se prove 
 
 fraud." It must appear that the price was so manifestly 
 inadequate as to shock the moral sense and create in the 
 mind at once, upon its being mentioned, a suspicion of 
 fraud 8 It is even considered that, in the absence of 
 other evidence tending- to show fraud, the court would 
 not deem inadequacy of consideration sufficient to do so. 4 
 In North Carolina it has been declared by recent decis- 
 ions that inadequacy of price, however gross, and whether 
 considered alone or in connection with other suspicious 
 badges, was only a circumstance tending to show fraud. 
 Gordon, )., said : " Other things being fair and honest, 
 mere inadequacy of price cannot, of itself, beget even a 
 presumption of fraud, much less is it per sc fraudulent." 6 
 Still, authority is abundant to the effect that where a 
 creditor or purchaser obtains the property or estate of an 
 insolvent debtor at a sacrifice or an under rate or value, 
 there is a strong and even violent presumption of a 
 fraudulent intent. 7 Thus, where a first lien for $[,200011 
 a farm worth $13,000, was transferred for a consideration 
 
 1 Archer v. Lapp, 12 Ore 202. 6 Pac. ' Emonds v. Termehr, (in Iowa 92, 
 
 Rep. 672; Dawson \. Niver, L9 S. 1 '. W, II X. W. Rep. HIT. See Cavender 
 
 606; Lionberger v. Baker, 88M0. I">1; v. Smith, 8 Iowa 360 ; Boyd v. Ellis, 
 
 Witherwas v. Riddle, 121 III. 14."). 13 11 Iowa 97. 
 
 Rep. 545 : Shay v. Wheeler, 69 5 Bery v. Hall, L05 N. C. 154, 10 S. 
 
 Mich 254. 37N. W. Rep. 210; Math E. Rep. 903 ; Hank v. Gilmer, llfiN. 
 
 ews v. Reinhardt, 149 111. 635, 37 X. C. 684, 22 S. E. Rep. 2. bee Davis v. 
 
 1; Rep. 85. Getchell, 32 Neb. 792, 49 X. W. Rep. 
 
 Kenipner v. Churchill, 8 Wall. 369 776. 
 
 3e Rouett v Milner, 57 Mo. App. 50. » Schatz v. Kirker, 4 East. Rep. 
 
 1 lark \ Krause, 2 Mackey - 1 >. C.) (Pa.) Ill, 1 II. 
 
 566. In Liming v. Kyle, 31 Neb. 649, 48 'See She! ton v. Church, 38 Conn. 
 
 X. W. Rep. 170, it was held thai a 420; Bartles v. Gibson, IT Fed. Rep. 
 
 charge to the effeel thai if the de- 297;.Brown v. Texas Cactus Hedge 
 
 fendanl Bold g Is to paj biB lebts, Co., 64 Tex. 400 ; Stern Auction & C. 
 
 the transaction should be upheld irre- Co. v. Mason, 16 Mo. A.pp. ITT: Mer- 
 
 tive ol the adequacy or inade tensv Welsing, 8- 1 ) Iowa 508, 52 N. W. 
 
 t|uacy of the consideration, was erro Rep. 362 ; Sommermeyer v. Schwartz, 
 
 • nn. Mm. Lit. In- Cm. v. 89 Wis. 66, 61 N. W. Rep. 311. 
 Smith, Hi Mo, 261, 22 S W. Rep. 623
 
 §232 
 
 [NADEQTJ VCS i H PURCHASE PRK I . 
 
 415 
 
 of $400, this was considered evidence of fraud which must 
 be submitted to a jury. 1 Again it is more strongly stated 
 in Davidson v. Little, 2 that " the sale of lands or goods by 
 an indebted person for less than their value is ipso facto 
 a fraud in both vendor and vendee." 3 Where the value 
 was $7,700, and the estimated consideration $1,537, 't 
 was held to be conclusively fraudulent. 4 The difference 
 was regarded as "so great as to shock the common sense 
 of mankind, and furnish in itself conclusive evidence of 
 fraud." 5 The question, however, is usually submitted to 
 the consideration of a jury, 6 to determine the intent of 
 the parties, 7 and is almost always linked with other 
 circumstances or indicia of fraud. 8 Inadequacy of con- 
 sideration is a fact calling for explanation, and is often 
 treated as a badge of fraud. 9 Insufficiency of price and 
 insolvency of a debtor, say the Supreme Court of Cali- 
 fornia, may be circumstances more or less potential in 
 the determination of fraud as a question of fact, but fail- 
 ure of consideration is not in itself sufficient to justify a 
 court in finding fraud as matter of law. 10 
 
 1 Rhoads v. Blatt, 84 Pa. St. 32, 1 
 Am. Insolv. E. 45. A conveyance 
 by a husband to his wife of property 
 worth $5,000, subject to a mortgage 
 of $1,000, and for a consideration of 
 $1,000 additional, was set aside. Sand- 
 man v. Seaman, 84 Hun (N. Y.) 337, 
 32 N. Y. Supp. 338. 
 
 * 22 Pa. St. 252. 
 
 3 See Doughten v. Gray, 10 N. J. 
 Eq. 330. 
 
 4 Wilson v. Jordan, 3 Woods 642. 
 See Ratcliff v. Trimble, 12 B. Mon. 
 (Ky.) 32; Borland v Mayo, 8 Ala. 
 104 ; Prosser v. Henderson, 11 Ala. 
 484. 
 
 5 Hoot v. Sorrell, 11 Ala 400. 
 ■Craver v. Miller, (55 Pa. St. 456. 
 'Motley v. Sawyer, 38 Me. OS. 
 "Hudgins v. Kemp, 20 How. 50. 
 
 9 See Fisher v. Shelver, 53 Wis. 
 
 498, ION. W. Rep. 681; Williamson 
 v. Goodwyn, 9 Gratt. (Va.) 503; 
 Laidlaw v. Gilmore, 47 How. Pr. 
 (N. Y.) 08 ; Hudgins v. Kemp, 2lJ 
 How. 50; Fuller v. Brewster, 53 Md. 
 361; Delaware v. Ensign, 21 Barb. 
 (N. Y.) 85; Ames v. Gilmore, 59 Mo. 
 537; Scott v. Winship, 20 Ga. 429; 
 Apperson v. Burgett, 33 Ark. 338; 
 Boyd v. Ellis, 11 Iowa 97 ; Barrow v. 
 Bailey, 5 Fla. 9 ; Loring v. Dunning, 
 16 Fla. 119; Bickler v. Kendall, 66 
 Iowa 703, 24 X. W. Rep. 518; Dout- 
 hitt v. Applegate, 33 Kan. 396, 6 Pac. 
 Rep. 575;Easum v. Pirtle, 81 Ky. 
 563 ; Steere v. Hoagland, 39 III. 264 ; 
 Stevens v. Dillman, 86 111. 233. See 
 Metropolitan Bank v. Durant, 22 N. 
 J. Eq. 35. 
 
 'o McFadden v. Mitchell, 54< !al 629 . 
 Jamison v. King, 50 Cal. 133. See
 
 4 ' 6 
 
 TRANSFER PENDING SU1 I. 
 
 § ?33 
 
 £233. Transfer pending suit. — The transfer of all, or, 
 according to some authorities, of a portion of a man's 
 goods during the pendency of a suit against him is a 
 mark of fraud. 1 One of the circumstances specified in 
 Twyne's case'-' was that the " transfer was made pending 
 the writ." 3 This fact usually induces the suspicion that 
 the conveyance was made to secure the property from 
 attachment or execution in the pending suit, and to hin- 
 der, delay, or defraud creditors. 1 This inference may, 
 of cotirse, be rebutted."' In Ray v. Roe ex don. Rrown, 6 
 the court said that the pendency of a suit was "one of 
 the many badges of fraud" which would induce a court 
 of equity to set aside a conveyance, or a jury to regard it 
 as covinous. In Shean v. Shay 7 it is characterized as 
 " only one of the badges." The court further said : 
 " The deed may be shown to be fraudulent and void as 
 to creditors when no suit was pending to recover the debt 
 or damages when it was made." 
 
 Motley v. Sawyer, 38 Me. 68. In 
 Day v. Cole, 11 [owa 152, the court 
 -ay that where tli' 1 incumbrances 
 upon realty, with the consideration 
 paid for its conveyance, very nearly 
 equal its reasonable value, the facl 
 that tin- consideration is small does 
 nol constitute a badge of fraud. 
 
 ' Redfield & Rice Mfg. Co. v. 
 Dysart, ''.'J Pa. St. 63 ; Godfrey v. 
 Germain, .' 1 Wis. 416; Babb v. 
 Clemson, 10 S. >v I.'. (Pa. 1 \SA ; 
 Thompson v. Robinson, 89 Me. 53; 
 Ford v Johnston, 7 linn (N. Y.) 568; 
 I Ihited stall-, v. Lotridge, t McLean 
 246 : Thomas \ Pyne, 55 (owa -Is 
 7 N. W. !,'• haferman v. 
 
 O'Brien, 23 Md, 565; Crawford 
 ■. Kni.- \ 50 U-i. 590 : Hartshorn v. 
 E hip - ::i Me. 99 ; Soden \ Soden, 
 ::i \ .1. Eq 11:. : Bean \ . Smith, 2 
 Ma 1 '. .Man v. Statham 
 
 How. 1;; Stoddard \ Butler, 20 
 Wend. (N Y. 501 Booher v. Wor- 
 
 rill, 57 Ga. 2:5.-): Stewart v. Wilson, 
 12 Pa. St. 450; King v. Wilcox, 11 
 Paige iX. Y.) 589; Cole v. Millerton 
 Inn, Co., 133 N. Y. Mil. 30 N. E. Rep. 
 847 ; (Sri-gory v. Cray, ^* (i a . 172, 14 
 s. E. Rep. 187; Dent v. Ferguson, 
 132 I'. s. 50, 10 S. C. Rep. 13; Low 
 v. Wort man, 44 X. J. Eq. 200, 7 At I. 
 Rep. 654, 14 Id. 586; Christie v. 
 Bridgman, 51 X. J. Eq 334, 25 At I. 
 Rep. 939, 30 Id. 420: Morris Canal & 
 
 Banking Co. v. Stearns, 23 X. J. Eq. 
 110. 
 
 3 Rep. 80 : 1 Smith's Lea.. Cas. 33. 
 See ; 22 
 
 ' See Merrill v. Locke, 41 X. II. 490; 
 Dorr v. Beck, 76 Hun (N. Y.) 540, 28 
 V Y Shim,. 200. 
 
 8 Sipe v. Earman, 26 Gratt. (Va.) 
 563. See Skipwith v. Cunningham, 
 8 Leigh 1 Va.)271. 
 
 »2 Blackf. 1 In. 1. 1 258. 
 
 1 12 I ml. 377.
 
 §234 EVIDENCE OF SECRECY. 41 7 
 
 The pendency of a suit is a warning to a dishonest 
 debtor to make haste to alienate and cover up his assets. 
 While the service of process in a suit does not usually 
 create a lien upon the defendant's property, and the doc- 
 trine of lis pendens is limited in its application, yet trans- 
 fers pending a suit are justly scanned with very greal 
 suspicion ; and where it is certain that judgment would 
 be rendered against the vendor, and evidence of inade- 
 quacy of consideration is adduced, the courts will conclude 
 that the conveyance is colorable, and made with a view to 
 hinder, delay, and defraud creditors. 1 Mr. May~ states 
 the rule to be that where the conveyance is made pendente 
 lite, it is, "when coupled with other circumstance, sugges- 
 tive of fraud, but where the consideration is adequate, 
 not a strong mark of a fraudulent intention." This, how- 
 ever, can scarcely be regarded, under the American 
 authorities, as giving this important element of proof its 
 proper weight. 
 
 § 234. Evidence of secrecy.— An unusual degree of secrecy 
 observed between the parties in the making of the sale is 
 a badge of fraud ; 3 and the secret removal of the property 
 immediately after the sale indicates a dishonest purpose. 4 
 Circumstances indicative of concealment, or of a design 
 to give a man the appearance of possessing property 
 which he does not own, are evidences of fraud, and are 
 
 1 Jaffers v. Aneals, 91 111. 487,493. ance were it shown to have been 
 
 2 May's Fraudulent Conveyances, done directly or indirectly for the 
 p. 83. benefit of Schwartz; bul the goods 
 
 3 Fishel v. Ireland, 52 Ga. 632 ; seem to have been taken away in a 
 Stewart v. Mills Co. Nat. Bk., 76 Iowa sleigh by some of the clerks, who 
 571. 41 N. W. Rep. 318. See Callan took this method of paying them- 
 v. Statham, 23 How. 480; Corlett v. selves for the amounts due them for 
 Radcliffe, 14 Moo. P. C. 140. In Davis wages. * * *' There is no evidence 
 v. Schwartz, 155 U. S. 642, 15 S. C. to connect either Schwartz or the 
 Rep. 237, the court says : "The fact mortgagees with it." 
 
 that goods were spirited away front 4 Delaware v. Ensign, 21 Barb. (N. 
 
 the store on Sunday night would tin- Y.) 88. 
 doubtedly assume a serious import- 
 27
 
 4 i8 
 
 I VIDENCE I »1 SECRECY 
 
 § 234 
 
 proper for a jury to weigh. 1 Secrecy "is a circumstance 
 connected with other facts from which fraud may be 
 inferred. " a An agreement, however, to conceal the fact 
 of a purchase is not perse fraudulent, but is merely matter 
 of evidence in favor of avoiding- the sale, which, although 
 perhaps very strong, is still capable of explanation 3 In 
 Haven v. Richardson,' the court said: " Secrecy is not 
 of itself evidence of fraud. It is likely to accompany 
 fraud, and may give force to other evidence, under par- 
 ticular circumstances." Thus it is held in Massachusetts 
 that an arrangement or understanding in regard to with- 
 holding mortgages from record until the mortgagors 
 should have trouble, did not render the mortgages void, 
 but was a matter entitled to consideration by the jury in 
 passing upon the question of fraud at common law. 5 On 
 the other hand, an agreement that the transaction is to be 
 kept secret until the debtor has an opportunity of escap- 
 ing beyond the reach of process issued by his other cred- 
 itors, or by which the deed is not to be offered for record 
 until the other creditors threaten suit, will render it fraud- 
 ulent' 1 Secrecy in such cases is a part of the considera- 
 
 l; »ss \. ( Irutsinger, ? Mo. 249 ; 
 I >obson v. Snider, 70 F< d. Rep. 10. 
 
 Warner \ Norton, 30 Bow. 460. 
 In Small \. Small, 56 Kan. 8, '.), 42 
 Pac. Rep. 323, thi court says: "Secrecy 
 is often « - ; * 1 1 • -< 1 a badge of fraud, bul it 
 i- not fraud itself. I f a man's dispo- 
 sit ion of his property is fair and law- 
 ful, the concealment of the trans- 
 action cannot render it fraudulent." 
 
 Gould v. Ward, I Pick. (Mass.) 
 
 104 Da) v. Q Ibar, 69 .Miss. 687 \-: 
 
 So. Rep. 80. 
 
 ' 5 X. II. 127. See Blennerhassetl 
 v. Sherman, 105 is. 117. 
 
 Folsom \ Clemence, ill Mass. 
 
 1 houron \ Pearson, 29 V 
 
 .1 Eq eei v. < >'Brien, 30 W. 
 
 i Rep, 14 . Reynolds 
 
 v. Gawthrop. :57 W. Va. 3, 10 S. E. 
 Rep. 364 : White v. Benjamin, '■*> Misc. 
 (N. Y. )!!»(), 23 N. V. Supp. 981. Bui 
 where there is no evidence that any 
 one was induced to give credit to the 
 grantor on the faith of his apparent 
 ownership, the failure to promptly 
 
 register the deed was held to I E no 
 
 importance. Nadal v. Britton, 112 N. 
 C. 180, 16 s. E. Rep. 914. See Insur- 
 ance • '<». v. Shoemaker. 95 Tenn. 72, 
 
 ::i s. W. Rep. 270. The presumption 
 of fraud arising from failure to record 
 is overcome by proof t hat the grantee 
 was an alien, ignoranl of the fact thai 
 registration was required. Tryon v. 
 Flournoy, so Ala. 321. 
 
 'See Hutchinson v. First Nat. Bk., 
 I:;:; I ii< I 284, 30 N. E. Rep. 952; Blen-
 
 §§ 234a, 23s 
 
 SECRET TRUST 
 
 419 
 
 tion ; the transaction is contaminated by it, and ought 
 not to be regarded as bona fide} 
 
 § 234a. Secret trust.— Of course, any form of a secret 
 trust originating from the property of and created or 
 reserved for the benefit of the debtor, vitiates the transfer 
 as to creditors" entitled to attack it. 3 
 
 § 235. Suppression or concealment— Not recording — Subse- 
 quent fraud. — As long ago as the case of Hungerford v. 
 Earle, 4 it was held that, " a deed not at first fraudulent 
 may afterwards become so by being concealed, or not 
 pursued, by which means creditors are drawn in to lend 
 their money." This doctrine has been repeatedly recog- 
 nized and reaffirmed indifferent forms in State and Fede- 
 ral tribunals. 5 In Coates v. Gerlach it appeared that a 
 deed of land had been made by a husband directly to his 
 wife. The deed was dated March 23, 1857, but was not 
 filed for record until December 2, 1857, over eight months 
 
 nerhasset v. Sherman, 105 U. S. 100 ; 
 Hilliard v. Cagle, 46 Miss. 309 ; Stock 
 Growers' Bk. v. Newton, 13 Col. 245, 
 22 Pac. Rep. 444 ; Putnam v. Rey- 
 nolds, 44 Mich 113, 6 N. W. Rep. 198 
 Folsom v. Clemence, 111 Mass. 273 
 Stewart v. Hopkins, 30 Ohio St. 502 
 Dickson v. McLarney, 97 Ala. 383, 12 
 So. Rep. 398. 
 
 1 Hafner v. Irwin, 1 Irerl. (N. C.) 
 Law, 499. Mr. May regards secrecy 
 as always evidence, but not of itself 
 conclusive evidence of fraud. May's 
 Fraudulent Conveyances, p. 83. See 
 Griffin v. Stanhope, Cro. Jac. 454 
 Worseley v. Demattos, 1 Burr. 467 
 Leonard v. Baker, 1 M. & S. 251 
 Corlett v. Radcliffe, 14 Moo. P. C. 139. 
 
 9 Bostwick v. Blake, 145 111. 85. 34 
 N. E. Rep. 38 ; Plimpton v. Goodell, 
 143 Mass. 367, 9 N. E. Rep. 791 : Plun- 
 kett v. Plunkett, 114 Ind. 484. 16 N. 
 E. Rep. 612, 17 Id. 562; Pattison v. 
 Letton, 56 Mo. App. 331 ; Vietor v. 
 
 Levy, 72 Hun (N. Y.) 263, 25 X. Y. 
 Supp. 644. 
 
 3 It was not regarded as a secret 
 trust as to subsequent creditors for a 
 debtor to provide a home for his fam 
 ily by a conveyance, through a third 
 person, to his wife, but this case is 
 certainly on the border line. Edgerly 
 v. First Nat. Bk., 30 111. App. 425. 
 
 4 2 Vera. 261. 
 
 5 Hildreth v. Sands, 2 Johns. Ch. 
 (N. Y.) 35 ; Scrivenor v. Scrivenor, 7 
 B. Mon. (Ky ) 374 ; Bank of the U.S. 
 v. Housman, 6 Paige (N. Y T . t 526; 
 Beecher v. Clark, 12 Blatchi 
 Blennerhassett v. Sherman, 105 U. S. 
 100; Coates v. Gerlach, 4 1 Pa. St. 48 , 
 Hafner v. Irwin, 1 Ired. (N. C.) Law 
 490 ; Blackman v. Preston, 24 III. App. 
 240. See Hildeburn v. Brown, 17 B. 
 Mon. (Ky.) 77!); Thouron v. Pearson, 
 
 29 N. .1. Eq.487 ; Stewart v. Bopkins, 
 
 30 Ohio St. 502. 
 
 6 44 Pa. St. 43, 46.
 
 420 SUPPRESSION OR CONCEALMENT. §235 
 
 thereafter. On January 21, 1858, the husband, professing 
 to act as the agent of the wife, effected a sale of the lands 
 to a third part)-. The creditors of the husband attached 
 the moneys in the hands of the vendees, and a contest 
 arose as to which had the better right to the proceeds of the 
 sale. Touching this controversy, Strong, J., said : "There 
 is .mother aspect of this case, not at all favorable to the 
 claim of the wife. It is that she withheld the deed of 
 her husband from record until December 2, 1857. In 
 asking that a deed void at law should be sustained in 
 equity, she is met with the fact that she asserted no right 
 under it ; in fact, concealed its existence until after her 
 husband had contracted the debts against which she now 
 seeks to set it up. There appears to have been no aban- 
 donment of possession by the husband Even if 
 
 the deed was delivered on the day of its date, the supine- 
 ness of the wife gave to the husband a false credit, and 
 equity will not aid her at the expense of those who have 
 been misled by her laches." i In Blennerhassett v. Sher- 
 man," Woods, J., in delivering the unanimous opinion of 
 the United States Supreme Court, observed : " Hut where 
 a mortgagee, knowing that his mortgagor is insolvent, 
 for the purpose of giving him a fictitious credit, actively 
 conceals the morteaee which covers his entire estate and 
 withholds it from the record, and while so concealing it 
 represents the mortgagor as having a large estate and 
 unlimited credit, and by these means others are induced to 
 
 DfcWilliams v. Rodders. .Vi rord. In Jeffrey v. Brown, 2\) IV<I. 
 
 Ala, ST. Rep. 481, thecourl said : " The niort- 
 
 • 105 r. S. 11T; Saner v. Behr, 49 gages to all the relatives of the de- 
 
 M" X 1 - 1 • . s »'> ; Wafer v. Harvey Co. faulting linn .... were recorded 
 
 Bk., Mi Kan. 598, '.'<; Pac Rep 1032. October lltli. three days before the 
 
 Sternbach v. Leopold, 50 111 A.pp. assignment. The suppression of these 
 
 176; Baker v. Pottle, is Minn. 479, mortgages until this critical moment 
 
 51 N W. Rep. 388 ; Dobsoa \ Snider, is a badge of fraud as to creditors, 
 
 '■" 1 • 1 R< p. 11 In iIm- latter case it and they will be denied validity and 
 
 id that forgetfulness maj be ac- effectiveness as linns upon the prop- 
 
 cepted 1- an excuse for failure t<> re- erty of debtors."
 
 § 236 I'A 1 1 il M 1 \IH NDE. 42 I 
 
 give him credit, and lie fails and is unable to pay the 
 debts thus contracted, the mortgage will be declared 
 fraudulent and void at common law, whether the motive 
 of the mortgagee be gain to himself or advantage to his 
 mortgagor." ] But there must be some evidence of a 
 preconcerted and contrived purpose to deceive and 
 defraud the other creditors 8 of the mortgagor, of which 
 scheme the withholding of the instrument from the record 
 constitutes a part. The non-filing of the deed is a cir- 
 cumstance to be considered on the question of fraud. 11 
 It is said in Curry v. McCauley : l "When the mortgage 
 was executed and delivered nothing further was necessary 
 to its validity as a complete transaction. It has, there- 
 fore, been held in Pennsylvania, by a long series of deci- 
 sions, that, as between the parties, a mortgage takes effect 
 upon delivery, and that an unrecorded mortgage is good 
 against an assignee for the benefit of creditors." So it is 
 decided that new creditors cannot follow the proceeds of 
 a sale of property made under the undisclosed security. 6 
 
 § 236. Evidence aliunde.— In a controversy which arose in 
 Mississippi 6 it was decided that a deed of trust in the 
 
 1 In cases where the statute re- Sav. Bank v. Buck, 123 Mo. 153, 2? S. 
 quires that a deed should be recorded W. Rep. 341; Second Nat. Bk. v. 
 within a certain period, and the gran- Merrill, 81 Wis. 142, 50 N. W. Rep 
 tee neglects so to record it, a cred- 503; Tryon v. Flouruoy. 80 Ala. 321. 
 Ltor of the grantor may pursue the 3 Day v. Goodbar, 69 Miss. 690, 12 
 ostensible title of the grantor, even So. Rep. 30 ; Klein v. Richardson, 04 
 though it may not be the real title of Miss. 41, 8 So. Rep. 204 ; Dobsou v. 
 the debtor. Nelson v. Henry, 2 Snider, 70 Fed. Rep. 11 ; Stock Grow- 
 Mackey (D. C.) 259. The creditor ers' Bank v. Newton, 13 Col. 256 ; Haas 
 must not, however, lose sight of the v. Sternbach, 150 111. 14. 41 N. E. 
 general rule that a judgment is not Rep. 51 ; Mull v. Dooley, 89 Iowa 312, 
 usually good against an unrecorded 56 N. W. Rep. 513. 
 
 conveyance. If the conveyance is 4 20 Fed. Hep. 584. 
 
 made with a fraudulent design the ' W. O. Tyler Paper Co. v. Orcutt- 
 
 mere recording of it will not make it Killick Lith. Co., 35 111. App. 502 ; 
 
 valid. Carver v. Barker, 73 Hun (N. Field v. Ridgelj , 116 111. 424, G N. E. 
 
 Y.), 418, 26 N. Y. Supp. 919. Rep. 156. 
 
 2 See Hegeler v. FirstNat. Bk., 129 8 Hilliard v. I lagle, 46 Miss. B09. 
 111. 157, 21 N. E. Rep. 812 ; State
 
 422 CONCI \l MENT. § 237 
 
 nature of a mortgage, valid on its face, and not made or 
 received with any intent to defeat existing or future cred- 
 itors, may nevertheless be held to be fraudulent and void 
 as to all creditors, existing and future, by evidence aliunde 
 showing the conduct of the parties in their dealings in 
 reference to the deed. The principal circumstances relied 
 on in this case to avoid the deed were the facts that the 
 grantor retained possession of the property, and that the 
 deed was withheld from record. This enabled the mort- 
 gagor to contract debts upon the presumption that the 
 property was unincumbered. The court said : " The 
 natural and logical effect of the agreement and assign- 
 ment, and the conduct of the parties thereto, was to mis- 
 lead and deceive the public, and induce credit to be given 
 to Baggett [the mortgagor], which he could not have 
 obtained if the truth had been known, and therefore the 
 whole scheme was fraudulent as to subsequent creditors, 
 as much so as if it had been contrived with that motive 
 and for that object." ' 
 
 i 237. Concealment in fraud of bankrupt act.— In Blenner- 
 hassett v. Sherman,' a very important case, reviewing the 
 authorities concerning suppression and concealment of 
 transfers, the court held that a mortgage executed by an 
 insolvent debtor with intent to give a preference to his 
 creditors, was void under the bankrupt act. It appeared 
 
 '.ill v. Griffith, 2 Mil. Ch. the last renewal upon record, to the 
 Dec - J7<). In this rase fche court de- prejudice of the other creditors who 
 d thai a part] could not be per- had trusted the debtor on the strength 
 mitted to take for bis own securitya of the possession and ostensible owner- 
 hill of sale or mortgage of chattels si up of the mortgaged property. The 
 from another, leaving the mortgagor mortgage which was in controversy 
 at his request in possession and osten- was declared void, and the decree 
 Biblj the owner, and keep the public was affirmed on appeal. See, further, 
 from a knowledge of the existence of Bafner v. Irwin, 1 Ired. (N. C.) Law 
 the mortgage bj withholding it from 490; Worseley v. Demattos, 1 Burr. 
 record for an indefinite period, renew- 107; Tarback v. Marbury, 2 Vern. 
 ing 1! periodically, and then receiving •"> 1 ; Neslin v. Wells, 104 U. 8. 428. 
 the benefit of the security by placing • 105 U. S. 100-121.
 
 § 238 ABSOLUTE t'o\\ EYANCS. [2 j 
 
 that the creditor had reasonable grounds to believe the 
 mortgagor insolvent, and knew that the instrument whs 
 made in fraud of the provisions of the bankrupt act; and 
 that the mortgagee had, for the purpose of evading the 
 bankrupt law, actively concealed the existence of the 
 instrument, and withheld it from record for a period of 
 more than two months. The security was avoided, not- 
 withstanding it was executed over two months before the 
 filing of the petition in bankruptcy. 1 
 
 £ 238. Absolute conveyance by way of security. — It is 
 familiar learning that a deed absolute on its face may, 
 despite the statute of frauds, be shown by extrinsic evi- 
 dence to be a mortgage, 2 and that the relationship of 
 mortgagee and mortgagor with all the usual incidents may 
 thus be established. If, however, the transfer was not 
 devised by the debtor to defraud or delay his creditors, 
 or if it was so designed, and the trustee or mortgagee 
 afforded no aid in carrying out the intention of the prin- 
 cipal, the transaction is valid, 3 though perhaps open to 
 suspicion. 4 A conveyance by way of security must be in 
 all respects as clean and clear as a conveyance for perma- 
 
 1 The repeal of the Federal Bank- Stultz, 60 Ind. 170: MeCarron v. Cas 
 rupt Act renders unimportant the con- sidy, 18 Ark. 34 ; Kitts v. Wilson. ISO 
 sideration of cases arising exclusively Ind. 492, 29 N. E. Rep. 401 : Wrighl \ . 
 under its provisions. Mahaffey, 76 Iowa 96, 40 N. W. Rep. 
 
 2 Horn v. Keteltas, 46 N. Y. 605 ; 112 ; Kemp v. Small, 32 Neb. 318,49 
 Carr v. Carr, 52 N. Y. 251 ; Murray v. N. W. Rep. 169. 
 
 Walker, 31 N. Y. 399 ; McBurney v. 3 Stevens v. Hinckley, 43 Me. 411 ; 
 
 Wellman, 42 Barb. (N. Y.) 390; Reed v. Woodman, 4 Me. 400; Firs! 
 
 sub nomine Dodge v. Wellman, 43 Nat. Bank v. Jaffray, 41 Kan. 694, 
 
 How. Pr. (N. Y.) 427 ; Odell v. Mont- 21 Par. Rep. 242; Carey-Hallidaj 
 
 ross, 68 N. Y. 499; Hassam v. Bar- Lumber Co. v, Cain, 70 .Miss 628 
 
 rett, 115 Mass. 256; Henley v. L3 So. Rep. 239 ; Beidler v. Crane, 135 
 
 Hotaling, 41 Cal. 22 ; Sedg. and Wait 111. 92, 25 N. E. Rep. 655 : Ruse v. 
 
 on Trial of Title to Land, 2d ed., Bromberg, 88 Ala. 620, 7 So. Rep. 
 
 §337; Gayv. Hamilton, 33 Cal. 686; 384. Sec Pattisoti v. Letton, 56 Mo. 
 
 French v. Burns, 35 Conn. 359 ; Clark App. 325. 
 
 v. Finlon, 90 111. 245; Butcher v. * Smith v. Onion, 19 Vt. 129.
 
 4-4 
 
 Al;Si (LUTE CONVEYAN< I . 
 
 §2 3 8 
 
 nent ownership. 1 If no fraud was in fact intended, the 
 security may be enforced ; * but if the debtor made a 
 secret reservation, 3 or the creditor comes into court with 
 a fraudulent claim of an absolute title," 4 other creditors 
 may avoid the transaction. 5 Williams, Ch. J., said in 
 Barker v. French : 6 " Although it is true that a person 
 may take security for a debt by a deed absolute, or by a 
 bill of sale, when it was intended for security, yet there 
 should be no disguise, nor dissembling, nor falsehood; 
 and if the party claims an absolute purchase when the 
 sale was only intended for security, and thereby seeks to 
 protect from the creditors the property of the vendor, and 
 endeavors to conceal the true nature of the transaction, it 
 is evidence of fraud." Probably the weight of the better 
 authority and the sounder reasoning is to the effect that 
 an absolute conveyance by way of security is a badge of 
 fraud as regards creditors which may be removed by evi- 
 dence of an honest intent. 7 It may be noted with refer- 
 
 1 Phinizy v. (Mark, 62 Ga. 623-627 : 
 Palmour v. Johnson, 84 Ga. 100, 10 S. 
 E. Rep. 500. 
 
 Gaffney's Assignee v. Signaigo, 1 
 Hill. 158 : Chickering v. Batch, 3 Sum- 
 ner 174; Smith v. Onion, 19 Vt. 427. 
 Lukins v. Ainl. •; Wall. 78. See 
 Oriental Bank v. Haskins, 3 Mete. 
 (Mass, 
 
 * Thompson v. Pennell, 07 Me. 162. 
 The law is settled in Alabama 1 hal 
 an absolute conveyance of lands 
 intended as 3ecurity for a debt, or, in 
 other words, designed to operate as a 
 mortgage, is fraudulent and void as 
 to existing creditors. The court say 
 that the parties may uol intend fraud, 
 there may be no actual intent to 
 hinder, delay, <»r defraud creditors, 
 because BUch is it- im-\ [table con- 
 sequence, the law condemns it. Sims 
 \ . < l-aines, <it Ala. 396. See Bryant v. 
 Young, 21 Ala. 264 ; Eartshorn v. 
 William^. :;i Ala. 1 19. To the Bame 
 
 general effect, see Ladd v. Wiggin, 35 
 X. EL 426, and cases cited. Compare 
 Prescott v. Hayes, 43 N. H. 593 ; Chen- 
 ery v. Palmer, 6 Cal. 122. 
 
 8 18 Vt. 460 ; Spence v. Smith, 34 
 W. Va. 697, 12 S. E. Rep. 828. 
 
 1 Ross v. Duggan, 5 Col. 85, 100 ; 
 Stevens v. Hinckley, 43 Me. 440; 
 Emmons v. Bradley, 56 Me. 333 ; 
 Moore v. Roe, 35 N. J. Eq. 90. See 
 Gibson v. Seymour, 4 Vt. 522 ; Co- 
 lumbia Bank v. Jacobs, 10 Mich. 349 ; 
 Harrison v. Trustees of Phillips Aca- 
 demy, 12 .Mass. 156 ; McClure v. Smith, 
 14 Col. 299, 23 Pac. Rep. 786; Puller 
 v. Griffith, 91 Iowa 632, 60 N. W. Rep. 
 247, citing the text ; Stralton v. Put- 
 ney, 63 N. H. 577.4 Atl. Rep. 876 ; 
 Watkins V. Arms. 04 N. H. 99, 6 Atl. 
 Rep. 92. In Connecticut a deed 
 intended as a mortgage is not valid 
 against attaching creditors, the de- 
 feasance not being recorded. Ives 
 v. Stone, 51 Conn. 446.
 
 § 238a EXCESS OF PROPERTY MORTGAGED. 
 
 ence to the law upon this subject, that an absolute 
 conveyance by way of security affords a convenient and 
 tempting cover for fraud upon creditors, and the tendency 
 to regard transactions of this kind with suspicion should 
 be encouraged. Where the security is corrupted with 
 fraud, not only can creditors secure it to be avoided, 1 but, 
 as is elsewhere shown, the parties themselves can get no 
 relief, 2 and in some courts a disposition is manifested to 
 declare void as to creditors absolute conveyances taken as 
 security. 3 Certainly such conveyances are calculated to 
 mislead creditors. 
 
 § 238a. Excess of property mortgaged. — The United 
 States Supreme Court recently declared that it was not 
 even a badge of fraud that a mortgage was made to cover 
 more property than would secure the debt due. 4 In 
 Downs v. Kissam, 5 Mr. Justice McLean said : " It is 
 no badge of fraud for a mortgage, which is a mere secu- 
 rity, to cover more property than will secure the debt 
 due. Any creditor may pay the mortgage debt, and pro- 
 ceed against the property." But the cases upon this 
 feature of the law are not entirely in harmony, and the 
 taking of greater security than is needed is a circum- 
 stance that is often considered, in connection with other 
 facts as bearing upon the intent and good faith of the 
 parties. 
 
 'Jones v. Light, 86 Me. 437, 30 Atl. King, 90 Iowa 345, 57 X. W. Rep. 
 
 Rep. 71. 8G4; Smith v. New York Life \n>. Co. 
 
 - Hassam v. Barrett, 115 Mass. 258. 57 Fed. Rep. 133 ; Smith v. Boyer, 29 
 
 3 Beidler v. Crane, 135 111. 98, 25 N. Neb. 76, 45 X. W . Rep. 265 : Thomp- 
 E. Rep. 655. son v. Richardson Drug Co., '■)'■'> Neb. 
 
 4 Davis v.Schwartz, 155 U. S. 641, 714. 50 X. W. Rep. 948; Showman v. 
 15 S. C. Rep. 2;;:. SeeMcKinney v. Lee, 86 Midi. 556. I!) N. \Y Rep. 578 
 Wade, 43 Mo. App. 152; Colbern v. Hardt v. Heidweyer, 152 U. S. 547, 14 
 Robertson, 80 Mo. 541 ; Grand Island S. C. Rep. 671 ; Kilpatrick-Koch D. G. 
 Banking Co. v. Costello, 45 Xeb. 139, Co. v. Strauss. 45 Neb. 793, 64 X. W. 
 63 N. W. Rep. 376. Rep. 223; Clinton Hill Lumber & Mfg. 
 
 5 10 How. 108. Co. v. Strieby, 52 N. .1. Eq. 571 
 
 6 See McKinney v. Wade, 43 Mo. Atl. Rep. 589. 
 App. 152; Lycoming Rubber Co. v.
 
 t jn INSOLVENCY . § 239 
 
 § 239. Insolvency. — Insolvency, as we have seen, does 
 not deprive the owner of the power to sell or mortgage 
 his property 1 to pay or secure his debts, whether to one 
 or more of his creditors.' Indebtedness or hopeless 
 insolvency is, however, an important element of proof in 
 marshalling badges of fraud to overturn a covinous trans- 
 action. 3 The distinction between the right of existing 
 and subsequent creditors which, of course, has an import- 
 ant bearing upon this subject, 1 is elsewhere considered. 
 The conveyance, to be fraudulent, should bear such a 
 ratio to the indebtedness as to tend directly to defeat the 
 claims of creditors. 5 It is not necessary that the con- 
 veyance should leave the grantor entirely without prop- 
 erty, but the amount transferred and the part retained 
 are all circumstances to be weighed. A heavy indebt- 
 edness of the grantor, together with a sale to a relative, 
 of necessity form strong badges or indications of collusion 
 and fraud, 7 but are not in themselves, unsupported by 
 other material facts, deemed conclusive proofs of fraud. 8 
 Again, it is said that insolvency of the grantor, although 
 a circumstance which may be taken, together with other 
 
 •Singer v. Goldenburg, 17 Mo. 69 ; Blodgett v. Chaplin, 48 Me. 322 ; 
 
 A pp. 549 ; Sanger v. Colbert, 84 Tex. Clark v. Depew, 25 Pa. St. 509 ; Bar- 
 
 (568, 19 S. W. Rep. 863. row v. Bailey, 5 Fla. 9. Compare 
 
 •-' Crawford v. Kirksey, 50 Ala. 591; Cox v. Fraley, 26 Ark. 20; State ex 
 
 Stover v. Herrington, 7 Ala. 142; rel. Peirce v. Merritt, 70 Mo. 277; 
 
 Samuel v. Kittenger, 6 Wash. 261, Fuller v. Brewster, 53 Mil. 358 ; Earn- 
 
 38 Pac. Rep. 509. See §§ 52, 95. In- shaw v. Stewart, 64 Mil. 513, 2 Atl. 
 
 solvency of a corporation does not Rep. 734. 
 
 necessarily entitle stockholders to 4 See Chaps. V, VI. 
 
 secure ;i receiver. Denike v. N. Y. & 5 Clai'k v Depew, 25 Pa. St. 509. 
 
 Rosendale I- A:. C <'<>., so N. Y. 599. 6 Citizens' ^at. Bank v. Hodges, so 
 
 Wail on Insolv. Corps. § 178. Hun (N. Y.) 471, 30 N. Y. Supp. 445 ; 
 
 Hudgins v. Kemp, 20 How. 45; Kain v. Larkin, 141 N. Y. 144, 36 N. 
 
 McRea v. Branch Bank of Alabama, E. Rep. 9; cf., Phillips v. Eesterson, 
 
 19 How. 377; Bibb v. Baker, 17 B. 154 111. 572, 39 N. E. Rep. 599. 
 
 Mon 1 K v.) 292 ; Bulkley v. Burlington, ' Mertens v. Welsing, 85 Iowa 508, 
 
 5 McLean 451 Purkitt v. Polack, 17 52 N. W. Rep. 362. 
 
 I al. 827 ; Eartshorn v. Eames, 31 Me. » Merrill v. Locke, 41 N. H. 490. 
 9:5 ; Ringgold v, Waggoner, 14 Ark.
 
 § 240 SALES UPON CREDIT. 427 
 
 material facts, to show a fraudulent design in disposing of 
 property, is not regarded as sufficient of itself to establish 
 it. 1 The sale of all the effects of an insolvent copartner, 
 ship upon credit at a fair valuation, to a responsible 
 vendee, who knew of the insolvency, is not per se fraudu- 
 lent ; 2 nor does proof of a sale upon credit, by a party in 
 failing circumstances, to one who had knowledge of these 
 circumstances, necessarily establish fraud. 3 
 
 § 240. Sales upon credit. — It must be remembered that 
 every delay to which a creditor is subjected in the collec- 
 tion of his debt is not necessarily fraudulent. 4 Insolvency 
 as is elsewhere shown, does not deprive a debtor of the 
 right to sell his property ; 5 and if the sale is made in 
 good faith, and without any intent to hinder, delay, or 
 defraud creditors, the mere fact that it was made upon 
 credit does not require that it should be declared invalid. 
 The court, in Roberts v. Shepard, said : 7 " A sale upon 
 credit of part of their property, by an insolvent firm, is a 
 circumstance which may be considered, with others, bear- 
 ing upon the question of fraudulent intent, but alone does 
 not necessarily establish it." Certainly it will not do to 
 say that the law presumes that every man who sells on 
 credit does so with intent to hinder and delay his cred- 
 itors. 8 In Ruhl v. Phillips, 11 the New York Commis- 
 sion of Appeals, reversing the court below, 10 held that 
 the sale of the entire effects of an insolvent copartnership 
 at a fair valuation, upon a credit ranging from four to 
 twenty-four months, to a responsible vendee, having 
 
 1 Leffel v. Schermerhorn, 13 Neb. 5 See $ 52. Beasley v. Bray, 98 X. 
 342. C. 266, 3 S. E. Rep. 497. 
 
 2 Ruhl v. Phillips. 48 N. Y. 125, 6 Beasley v. Bray, 98 N. C. 266, 3 
 8 Am. Rep. 522. S. E. Rep. 497. 
 
 3 Loeschigk v. Bridge, 42 N. Y. 421. 7 2 Daly (N. Y.) 112. 
 
 4 Loeschigk v. Bridge, 42 Barb. (N. N Gillet v. Phelps, 12 Wis. 899. 
 Y.) 173 : affi'd 42 N. Y. 421. s 48 N. Y. 125. 
 
 10 2 Daly (N. Y.) 45.
 
 428 UNUSUAL ACTS AND TRANSACTIONS. § 24] 
 
 knowledge of the insolvency, was not fraudulent per se. 
 In the New York Court of Appeals 1 the principle is 
 enunciated that the mere fact of a sale of his property by 
 a party in failing circumstances, to a purchaser having 
 knowledge of his condition, upon an average credit of 
 sixteen months, did not per ^'establish fraud, or an intent 
 to hinder or delay creditors. 2 Where, however, it appears 
 upon the face of the transaction that the parties contem- 
 plated a large surplus, and the property is practically pro- 
 tected from forced sales or attachments or levies for two 
 years, the instrument will be declared void as hindering 
 and delaying creditors. 3 A sale upon a long credit to an 
 irresponsible purchaser with no security is declared in 
 Tennessee to be a badge of fraud. 4 So in Texas a sale 
 on an indefinite credit is a badge. 5 
 
 § 241. Unusual acts and transactions. — Courts and juries 
 are often influenced in favor of creditors by slight circum- 
 stances connected with the transaction indicating exces- 
 sive efforts to give the conveyance the appearance of 
 fairness, or by facts which are not the usual attendants 
 of business transactions. 7 Honesty requires no strata- 
 gem or subterfuge to support and aid it. 8 In Adams v. 
 1 )avidson 9 the assignee took a fellow-clerk with him 
 to witness an attempted transfer of possession, and 
 requested him to " pay attention and recollect what he 
 heard." The court were plainly influenced by the evi- 
 
 1 Loeschigk v. Bridge, 42 N. Y. 5 Jacobs v. Totty, 76 Tex. 343, 13 
 
 421. S. W. Rep. 372. 
 
 < !ompare Brinley v. Spring. 7 Me. 6 Hart v. Sandy, 39 W. Va. G44, 20 
 
 241; Harris v. Burns, 50 Cal. 140; S. E. Rep. 665. 
 
 Lewis v. Caperton, 8 Gratt. (Va.) 148. "Stevens v. Pierce, 147 Mass. 510, 
 
 Bigelow v. Stringer, 40 Mo. 195. 18 N. E. Rep. 411 : Danjean v. Black- 
 
 Compare Reynolds v. Crook, 31 Ala. eter, 13 La. Ann. 597; Peabody v. 
 
 634 Jacobs v. Totty, 76 Tex. 343, 13 Knapp, 15:; Mass. 242, 26 N. E. Rep. 
 
 S. W. Rep. 372. 696. 
 
 1 Robinson \. Frankel, 85Tenn.484, B Comstock v. Ray ford, 20 Miss. 391. 
 
 3 S. W. Rep. 652. » 10 N. Y. 309, 312.
 
 §241 UNUSUAL ACTS AND TRANSACTIONS. 429 
 
 dence of this request, and observed that it was wholly 
 unnecessary if the parties intended to comply with the 
 exactions of good faith in taking and holding possession 
 of the property assigned. To a similar effect is the case 
 of Hartshorn v. Eames. 1 In that case the court said 
 that there was no indication of great formality in trans- 
 acting business between the parties, except on the occa- 
 sion in question, when great precision was resorted to ; 
 an accurate calculation and valuation gone into, and the 
 claim of the grantee made to overbalance the valuation. 
 These with other facts led the court to believe that the 
 transaction resembled a farce rather than a bona fide 
 transaction. Painstaking legal formalities may be a 
 badge of fraud. 3 Again it is said that " bona fide trans- 
 actions do not need to be clothed with the extraordinary 
 pretense of prompt payment." 3 In Langford v. Ply 4 the 
 deed of grift contained this clause : " Now this indenture 
 is not to hinder or delay the collection of any of my just 
 debts, but the same are to be paid." A suit for slander 
 was pending at the time. The court said that this clause 
 was evidently the result of a consciousness on the part of 
 the assignor that others might think the deed was made 
 with a fraudulent design, and, as he was otherwise free 
 from debt, it indicated that his purpose in making the 
 transfer was to defeat the judgment which might possibly 
 be recovered in the action for slander. 5 " Studied for- 
 mality and apparent fairness " will not save a fraudulent 
 
 1 31 Me. 100. go through with the formality of pro- 
 
 * Higgins v. Spahr, 145 Ind. 167, 43 curing, executing and delivering a 
 
 N. E.Rep. 11. hill of sale of the property : conducl 
 
 3 King v. Moon, 42 Mo. 551, 561; unusual in respect to property of this 
 Hart v. Sandy, 39 W. Va. 644, 20 S. character where the sale is honestly 
 E. Rep. 665. made." This was regarded as one of 
 
 4 7 Humph. (Tenn.) 587. the circumstances attending the sale 
 •IH Mead v. Noyes, 44 Conn. 491, which tended strongly to show the 
 
 "the parties took the precaution to existence of actual fraud.
 
 430 UNUSUAL ACTS AND TRANSACTIONS. £24! 
 
 transaction. 1 In Crawford v. Kirksey 2 it was contended 
 1)}- counsel that very great and unusual particularity fur- 
 nished badges of frauds The court observed that if the 
 transaction was consummated quietly and without wit- 
 nesses, then the complaint would be that it was secretly 
 effected. If unusual publicity or particularity character- 
 ized the transaction, this would be urged as a badge of 
 fraud. This, it was said, savored of the water test which 
 in former years was applied to those suspected of witch- 
 craft. If they sank they were innocent, but they incurred 
 great hazard of losing their lives by drowning ; if they 
 swam they were adjudged witches and perished at the 
 stake. 
 
 It may be observed that the absence of memoranda, or 
 of any record of the consideration; 4 the failure to take 
 an account of the stock and no agreement as to the exact 
 terms of settlement ;"' a false admission of the receipt of 
 the consideration ; ,; unusual clauses in the instrument ; r 
 giving the vendee power to prefer other creditors to the 
 
 1 First Nat. Hank v. Snowies, 67 The act, therefore, would rather he 
 
 Wis. 385, 28 N. W. Rep. 235. evidence of caution, like the direc- 
 
 1 55 Ala. 300. tion sometimes given to scriveners to 
 
 The tacts in Lake v. Morris, 30 draw up strong writings, which, to 
 
 Conn. '204. afford illustration of the say the least, would furnish as much 
 
 general subject. The vendee was in ground to suspect the honesty of a 
 
 actual possession of the property pur- transaction as it would evidence of 
 
 chased. Hence counsel contended its bona fides." 
 
 that the sale was void because there 'Hubbard v. Allen, 59 Ala. 300; 
 
 bad hecn no actual delivery of posses- Alexander v. Todd, 1 Bond 179; Mc- 
 
 Bion. The court, in overruling the Carty v. Fletcher, 12 Wash. 244, 40 
 
 argument, said: "No such delivery Pac. Rep. 939. 
 
 ■"ill. I have taken place without first Wlieelden v. Wilson, 44 Me. 20; 
 
 taking the horses from the plaintiff's Frisk v. Reigehnan, 75 Wis. 499.43 
 
 »ion for the mere purposeof re- N. W. Rep. 1117, 44 Id. 766. 
 delivering them to him again. But a fi Alexander v. Todd, 1 Bond 180: 
 
 merely formal act like this we pre- Balto. & O. R. R. Co. v. Hoge, 34 Pa. 
 
 BU would never occur between St. 214 ; Watt v. drove. 2 Sch. & Lef. 
 
 parties whose only object was t<> 501. 
 
 place the purchased property in the Pilling v. Otis, 13 Wis. 496 ; Gibba 
 
 hands of the purchaser for his use. v. Thompson, 7 Humph. (Tenn.) 179.
 
 § 24i 
 
 UNUSUAL i.CTS A.ND TRANSACT!* >NS. 
 
 43 > 
 
 extent of the surplus; 1 a sale to a creditor without a 
 surrender of the evidence of indebtedness;- a sale not 
 conducted in the " usual and ordinary course of busi- 
 ness ; 8 conduct of the parties which is "exceptional and 
 peculiar ; " 4 a conveyance of real estate without adequate 
 security ; 5 a sale of a horse on the Sabbath without trying 
 the same;'"' absence of authentic evidence of indebted- 
 ness, considerable in amount, other than a pencil memo- 
 randum ; 7 contradictory and irreconcilable accounts of the 
 transaction given by the vendor and vendee ; 8 receiving 
 the rents and managing the. estate by the vendor after 
 the alleged sale, under an assumed agency from the 
 vendee, but without any evidence of a genuine agency 
 other than the uncorroborated assertion of the party ; 10 
 absence of means in the vendee; 11 preparation of the 
 deed at the sole instance of the grantee; 12 leaving the 
 business sign the same; 13 continuing to act as owner," 
 employment of the vendor after the sale; 1 ' sacrificing 
 
 1 Seger's Son v. Thomas Bros., 107 
 Mo 643, 18 S. W. Rep. 33 ; Barnum 
 v. Hempstead, 7 Paige (N. Y.) 568. 
 
 2 Gardner v. Broussard, 39 Tex. 372 ; 
 Webb v. Ingham, 29 W. Va. 389, 1 S. 
 E. Rep. 816. 
 
 3 State ex rel, Peirce v. Merritt, 70 
 Mo. 283 ; Snell v. Harrison, 104 Mo. 
 158, 16 S. W. Rep. 152 ; Godfrey v. 
 Miller, 80 Cal. 420, 22 Pac. Rep. 290. 
 
 4 Brinks v. Heise, 84 Pa. St. 253 ; 
 Gollober v. Martin, 33 Kan. 255, 6 
 Pac. Rep. 267 : Hart v. Sandy, 39 W. 
 Va. 644, 657, 20 S. E. Rep. 665. 
 
 6 Owen v. Arvis, 26 N. J. Law 32. 
 
 6 Godfrey v. Miller, 80 Cal. 420, 22 
 Pac. Rep. 290. 
 
 7 Brinks v. Heise, 84 Pa. St. 253. 
 
 8 Marshall v. Green, 24 Ark. 419. 
 
 9 Banner v. May, 2 Wash. St. 221, 
 26 Pac. Rep. 248 ; Mertens v. Welsing, 
 85 Iowa 510, 52 N. W. Rep. 362. 
 
 "' Sands v. Codwise, 4 Johns. (N. V.) 
 536. 
 
 11 Danby v. Sharp, 2 MacAr. (D. C.) 
 435 ; Stevens v. Dillman, 86 111. 233. 
 See Castle v. Billiard, 23 How. 186. 
 In Morford v. Dieffenbacker, 51 Mich. 
 593, 607, 20 N. W. Rep. 600, Cooley, 
 C. J., said : " A sale to a person with- 
 out means, when ready money was 
 the nominal purpose, must neces- 
 sarily be suspicious." 
 
 12 Sears v. Shafer, 1 Barb. (N. Y.) 
 408. 
 
 13 Danby v. Sharp, 2 MacAr. (D.C.) 
 435; Wright v. McCorniick, 6'i Mo 
 430. 
 
 14 Second Nat. Bk. v. Yeaton, •">:: Md. 
 443. 
 
 If, McKibbin v. .Martin. 64 Pa. St. 
 352: Eurlburd v. Bogardus. in Cal. 
 518: Rothgerber v. Gough, 52 [11.438. 
 
 See Bird v. Andrews, 10 < 'mill. ■> 12
 
 45- 
 
 UNUSUAL \( rS AND TRANSACTIONS. 
 
 ; 241 
 
 property for one-fourth of its value; 1 deeding property 
 to relatives without their knowledge;'" concealment; 3 
 absence of evidence which is supposed to be within the 
 reach of the party charged with the fraudulent act ; 4 vague 
 and partial explanations; 5 taking goods in excess of a 
 debt; 6 neglect to testify; 7 or to offer explanation; 8 
 destruction of letters relating to the controversy;'-' 
 tendering security without solicitation; 10 transferring 
 
 ' Stevens v. Dillman, 36 111. 235; 
 Frisk v. Reigelman, 75 Wis. 499, 43 
 X W. Rep. HIT. 11 Id. 766. 
 
 Lavender v. Boaz, 17 111. App. 
 421; Omaha Hardware Co. v. Dun- 
 can, 31 Neb. 217. 47 N. W. Rep. 846. 
 
 »Hoffer v. Gladden, 75 Ga. 538. 
 
 4 Newman v. Cordell, 43 Barb. (X. 
 Y.) 148-461 ; Peeblee v. Horton, 64 X. 
 
 • :. 374. 
 
 Smith v. Brown, 34 Mich. 455; 
 Helms v. Green, 105 X T . C. 252. 11 S. 
 E. Rep. 470. 
 
 "McVeagh v. Baxter. 82 Mo. 518 ; 
 Hart v. Sandy, 39 W. Va 644, 657, 
 ■mi s. E. Rep. 665. 
 
 " Graham v. Furber, 14 C. B 410 ; 
 Goshorn v. Snodgrass, 17 W. Va. 770; 
 Conn. Mutual Life Ins. Co. v. Smith, 
 117 Mo. 261, 22 S. \V. Rep. 023; Ham 
 v. Gilmore, 7 Misc. (N. Y.) 596, 
 59 X. Y. St. Rep. 291, 28 X. Y. 
 Sii|»|i. 126; Throckmorton v. Chap- 
 man, 65 Conn. 454, 32 Atl. Rep. 
 930; Whitney v. Rose, 43 Mich. 27. 1 
 X. W. Rep. 557 : Second Nat. Bk. v. 
 Yeaton, 53 Md. 4 17 ; Henderson 
 v. Henderson, 55 Mo. 559. See 
 Harrell v. Mitchell, 61 Ala. 270. "The 
 omission of Johnson t<> testily as a 
 witness for himself, in reply to the 
 evidence againsl him, is of greal 
 n eight ." Bom den v. Johnson, 101 1 '. 
 2 S. I !. Rep 246. See Clark 
 \. Van Riemsdyk, '.t Cranch L53 ; 
 Clements v. Moore, 6 Wall. 299; 
 Hoffer v. Gladden, 75 Ga. 538; 
 
 Schwier v. N. Y. Cent, & H. R. R. 
 R. Co., 90 N. Y. 564. In Bleecker 
 
 v. Johnston, 69 N. Y\ 311, the 
 court says: "The non-attendance 
 of the absent defendant at the trial 
 may have been a proper subject of 
 remark and for consideration by the 
 jury, and if they, under all the cir- 
 cumstances, thought his absence sus- 
 picious, they might take a less favor- 
 able view of the testimony on the 
 part of the defense ; but this was the 
 extent to which the plaintiff was en- 
 titled to any benefit from the circum- 
 stance. (People v. Dyle, 21 N. Y. 
 578). It was not a case for the ap- 
 plication of the stringent maxim, 
 'Omnia presumatur contra spoliato- 
 /•<///." That is applied in its rigor to 
 cases of a tortious destruction or sup- 
 pression of documents, or other in- 
 struments of evidence, or resorting to 
 improper means to get or keep wit- 
 nesses away from the trial. If a party 
 by his own tortious act withhold the 
 evidence by which the nature of the 
 case would be made manifest, a pre- 
 sumption to his disadvantage may be 
 indulged by the jury." But see Clark 
 v. Krause, 2 Mackey (D. C.) 570. 
 
 a Schumacher v. Bell, 164 111. 184, 
 15 X. E. Hep. 428. 
 ' Burke v. Burke. 31 Mich. 155. 
 10 Kellogg v. Root, 23 Fed Hep. 525; 
 Wis.' v. Wilds. 77 Iowa 592, 42 X. W. 
 Rep. 553.
 
 §241 UNUSUAL ACTS A.ND TRANSA \S. (.33 
 
 professedly to prevent the sacrifice of the property; 1 
 circuitous and evidently covinous series of transfers 
 through relatives; 2 doing things for effect; 3 taking 
 additional security by way of chattel mortgage on a claim 
 already secured by mortgage on real estate; 4 extending 
 unusual credit; 5 taking currency in payment instead of a 
 check; 6 all these are indicia of fraud upon creditors 
 proper for the consideration of the jury, or of a court of 
 equity in cases where a jury trial is not had. 
 
 On the other hand, the purchase of land by an attorney 
 without making an abstract of title is not necessarily evi- 
 dence of fraud ; 7 nor is a sale by an insolvent of his whole 
 stock in trade upon credit always covinous, 8 though it is 
 circumscribed by fraudulent presumptions. It has been 
 even held that evidence of a sale by a party indebted, of 
 an uninventoried stock of goods, on credit, to a near rela- 
 tive failed to establish fraud ; nor is a trust void because 
 not particularly declared. 9 Then the fact that the pur- 
 chaser has no use for the property is not evidence of 
 fraud. 10 The want of minute accuracy of language, and 
 the disregard of the usual forms, will not render an 
 assignment void, 11 nor is it affected by a failure to file 
 schedules, 12 nor by the failure to record it for a few days. 13 
 The failure to describe the debt secured by a chattel 
 mortgage will not invalidate it. 1 * 
 
 In a Massachusetts case it was decided that a party was 
 
 1 German Ins. Bank v. Nunes, 80 9 Forbes v. Scannell, 13 Cal. 287. 
 Ky. 334. '"Grubbs v. Greer, 5 Coldw. (Tenn.) 
 
 2 Greer v. O'Brien, 36 W. Va. 287, 548. 
 
 15 S. E. Rep. 74. "Meeker v. Saunders, 6 Iowa 67. 
 
 3 Comstock v. Rayford, 20 Miss. 370. Compare State v. Keeler, 49 Mo. 
 
 4 Crapster v. Williams, 21 Kan. 109. 548. 
 
 6 Cowling v. Estes, 15 111. App. 260. 1S Produce Bank v. Morton, 67 N. Y. 
 
 6 Smith v. White, 50 Hun (N. Y .), 203. See Brennan v. Wilson, 1 Am. 
 603, 2 N. Y. Supp. 855. Insolv. Rep. 77. 
 
 7 Jenkins v. Einstein, 3 Biss. 129. 13 Hoopes v. Knell. 31 Md. 553. 
 
 8 Scheitlin v. Stone, 43 Barb. (N. Y.) 14 Magirl v. Magirl, 89 Iowa 342, 56 
 634, Sutherland, J., dissenting. N. W. Rep. 510. 
 
 28
 
 434 
 
 RELATIONSHIP. 
 
 §242 
 
 not entitled to offer the testimony of witnesses to the 
 effect "that the giving of a mortgage, such as the mort- 
 gage in question, would not be in the usual and ordinary 
 course of such business." That was considered to be the 
 question for the jury to decide. 1 
 
 >f 242. Effect of relationship upon debtor's transactions. — 
 The cases relating to the effect of proof of relationship 
 of parties dealing with the debtor to him are numerous. 
 A clearly formulated rule on the subject is not possible. 
 It is said by the Supreme Court of Pennsylvania that 
 " there is no law prohibiting persons, standing in near 
 relations of business or affinity, from buying from each 
 other ; or requiring them to conduct their business with 
 each other in special form. 1 ' ~ The sale of property by a 
 father to his son, or by the son to his father, cannot in 
 itself be considered as a badge of fraud, 3 and sometimes 
 the strongest considerations of duty may prompt a son to 
 prefer the claim of a widowed mother. 4 The court may 
 require a mother to show that she had the means to 
 make advances as claimed to her son. 5 " The relation- 
 ship of assignor and assignee," says Finch, J., "and their 
 
 Buffum v. Jones, 144 Mass. 29, 31, 
 10 N. E. Rep. 471. 
 
 Dunlap v. Bournonville, 26 Pa. 
 St. ?:i. See Reehling v. Byers, 94 Pa. 
 si. 333 . McVicker v. May, :i Pa. St. 
 224 , Forsyth v. Matthews, 14 Pa. St. 
 100; Bumpas v. Dotson, 7 Humph. 
 (Tenn.) 310; Shearon v. Henderson, 
 38 Tex. '-'■")') ; Wilson v. Lott, 5 Fla 
 305 ; Bowman v. Houdlette, is Me. 
 245 : Tyberandl v. Raucke, 96 111. 71 ;' 
 Pusej v. Gardner, 21 W. Va. 477 ; 
 Lininger \. Berron, 18 Neb. 452, 25 
 N. W. Rep. 578; Oherholtzer v. 
 Bazen, 92 [owa 602, til N. \V. Rep. 
 365 ; Rockland County v. Summer 
 vill.-. 1 i'.i I ml. lilt:.. :!'.» X. E Rep. 307; 
 Barr v. Church, 82 Wis. 382, 52 N. W. 
 Rep. 591 : Gray \. Galpin, 98 Cal. 633, 
 
 33 Pac. Rep. 725 : Bierne v. Ray, 37 
 W. Va. 577, 16 S. E. Rep. 804 ; Steel 
 v. De May, 102 Mich. 274, 60 N. W. 
 Rep. 684 ; Leppig v. Bretzel, 48 Mich. 
 321, 12 N. W. Rep. 199; Kelly v. 
 Fleming, 113 N. C. 133, 18 8. E. Rep. 
 81 : Reehling v. Byers, 94 Pa. St. 316 ; 
 Kitchen v. McCloskey, 150 Pa. St. 
 384, .'I AH. Rep.68S; Bank v. Bridgers, 
 114 N. C. 383, 19 S. E. Rep. 666. 
 
 Shearon v. Henderson, 38 Tex. 
 251 ; Fleischer v. Dignon. 53 Iowa 
 
 2S8; Wl lden v. Wilson, 44 Me. 11 ; 
 
 s. p., Drmarst v. Terhune, 18 N.J. Eq. 
 49: Low v. Wortman, 44 N. J. Eq. 
 193, 7 Atl. Rep. 654 : 14 Id 586. 
 1 Colej v. Coley, 14 N. J. Eq. 350. 
 
 Thompson v. Tower Mfg. Co., 
 
 101 Ala. 110, Iti So. Rep. 116.
 
 § 242 
 
 RELATIONSHIP. 
 
 435 
 
 intimacy and friendship, and the preference given to the 
 latter as a creditor prove nothing by themselves. They 
 are consistent with honesty and innocence, and become 
 only important when other circumstances, indicative of 
 fraud, invest them with a new character and purpose, and 
 transform them from equivocal and ambiguous facts into 
 positive badges of fraud." l The majority of the cases 
 hold that relationship of the parties, however, is cal- 
 culated to awaken suspicion, 2 and the transaction will be 
 closely scrutinized, 3 if there are any facts which tend to 
 indicate fraud, though the relationship is not of itself 
 sufficient to raise a presumption of fraud.* It may be 
 
 1 Shultz v. Hoagland, 85 N. Y. 468 ; 
 s. p., Clark v. Krause, 2Mackey(D. C.) 
 566 ; Gottlieb v. Thatcher, 151 U. S. 
 271, 14 S. C. Rep. 319 ; Kitchen v. 
 McCloskey, 150 Pa. St. 376, 24 Atl. 
 Rep 688 : Barr v. Church, 82 Wis. 
 382, 52 N. W. Rep. 591 ; First Nat. 
 Bk. v. Smith, 93 Ala. 99, 9 So. Rep. 
 548; Shober v. Wheeler, 113 N. C. 
 370, 18 S. E. Rep. 328 ; Smith v. Reid, 
 134 N. Y. 568, 31 N. E. Rep. 1082 ; 
 Bierne v. Ray, 37 W. Va. 571, 16 S. 
 E. Rep. 804 ; Martin v. Fox, 40 Mo. 
 App. 664. See Renney v. Williams, 
 89 Mo. 145, 1 S. W. Rep. 227 
 
 2 Bumpas v. Dotson, 7 Humph. 
 (Tenn.) 310; Forsyth v. Matthews, 14 
 Pa. St. 100; Harrell v. Mitchell, 61 
 Ala 271 ; Engraham v. Pate, 51 Ga. 
 537; Sherman v. Hogland, 73 Ind. 
 473 ; Moog v. Farley, 79 Ala. 246 ; 
 Gregory v. Gray, 88 Ga. 172, 14 S. E. 
 Rep. 187 ; Fisher v. Moog, 39 Fed. Rep. 
 665; Davis v. Schwartz, 155 U. S. 
 638, 15 S. C. Rep. 237 ; First Nat. Bk. 
 v Moffatt, 77 Hun (N. Y. ) 468, 28 N. Y. 
 Supp. 1078; Robinson v. Frankel, 85 
 Tenn. 478. 3 S. W. Rep. 652. 
 
 3 Marshall v. Croom, 60 Ala. 121: 
 Fisher v. Shelver, 53 Wis. 501, 10 N. 
 W. Rep. 681 ; Seitz v. Mitchell, 94 U. 
 
 S. 580 ; Simms v. Morse, 4 Hughes 
 582 ; Fisher v. Herron, 22 Neb. 185, 34 
 N. W. Rep. 365; Bartlett v. Chees- 
 brough, 23 Neb. 771, 37 N. W. Rep. 
 652; Farrington v. Stone, 35 Neb. 
 456, 53 N. W. Rep. 389 ; Middleton v. 
 Sinclair, 5 Cranch, C. C. 409, 17 
 Fed. Cas. 275 ; McEvony v. Row- 
 land, 43 Neb. 97, 61 N. W. Rep. 
 124 ; Archer v. Long, 32 S. C. 
 171, 11 S. E. Rep. 86 ; Livey v. Win- 
 ton, 30 W. Va. 554, 4 S. E. Rep. 451 ; 
 Shauer v. Alterton, 151 IT. S. 607, 14 
 S. C. Rep. 442. Mr. May says: "A 
 settlement or other conveyance in fa- 
 vor of a near relative is open to more 
 suspicion than one to a mere stran- 
 ger, inasmuch as it is more likely t<> 
 be intended, not as a real transfer of 
 property by which the donor puts it 
 out of his own reach, but a feigned 
 and collusive arrangement by which 
 it is secretly understood thai tli" 
 donee shall hold the property against 
 the claims of creditors or purchasers, 
 and still let the donor receive benefits 
 from it." May's Fraudulent Convey- 
 ances, p. 236. 
 
 * King v. Russell, 40 Tex. 13*2 ; Mar- 
 shall v. Croom, 60 Ala. 121. Bierne 
 v. Ray, :)7 W. Va. .-,70. 16 S. E. Rep.
 
 436 RELATIONSHIP. § 242 
 
 considered, with the other facts, by the jury, 1 and rather 
 tends to aid the creditors, ~ for it is regarded as highly 
 probable that a party intending to perpetrate a fraud 
 would look for aid and connivance to a relative rather 
 than to a stranger. Still an instruction to a jury that a 
 deed given to a brother to secure a debt is prima facie 
 fraudulent is erroneous. 3 When relationship is coupled 
 with secrecy in the transaction, it may, unless explained 
 or justified, be regarded as fraudulent. 4 The same rule 
 applies when the transfer conveys the debtor's entire 
 estate, and other badges accompany it. 5 In some cases 
 it is held that in transactions between relatives no clearer 
 proof of good faith is required than in transactions 
 between strangers. It may be observed here- that the 
 fact that the creditors who obtained judgments by con- 
 fession bore intimate relations to the debtors, the delay 
 in the levy of the execution, the unusual time and order 
 under which the assignee took possession, and the agency 
 of the same attorney in all the proceedings, though, per- 
 haps, casting suspicion upon the proceedings, are not in 
 themselves sufficiently strong to sustain an imputation of 
 bad faith, or a charge of fraudulent preference. 7 We 
 may here advert to the rule of the common law that a 
 debtor has a right to prefer one class of creditors to 
 another, and that it is error "to encourage a jury to take 
 into consideration the exercise of this right as 'a circum- 
 
 804 : Ridge \. Greenwell, r >8 Mo. App. C. 883, 19 S. E. Rep. 666. See Gott- 
 
 179; Bleiler v. Moore, 88 Wis. 438, lieb v. Thatcher, 151 U.S. 27!). 14 S. 
 
 60 X. W. Rep. 792; Robinson v. C. Rep. 319 ; Bleiler v. Moore. 88 Wis. 
 
 I rank( I. 85 Tenn 175, 8 8. W. Rep. 138, 60 N. W. Rep. 792. 
 
 Ml. n v. Kirk, si [ wa 658,47 l Reiger v. Davis, 67 N. C. 189. 
 
 X W. Ren 006. . Embury v. Klemm. 30 N. J. Eq. 
 
 Engrahaoi \. Pate, 51 Ga. 537; 523; Johnston v. Dick. 27 Miss. 277. 
 
 Burton \ Boyd, 7 Kan. 17. 'Teague v. Lindsey, 106 Ala. 266, 
 
 1 Demares! v Terhune, is n. J. 17 So. Rep. 538. 
 
 Baldwin v. Freydendall, 10 111. 
 
 Citj Nat. I'.k v. Bridgers, II I X. App. L07.
 
 § 242 
 
 RELATIONSHIP. 
 
 In- 
 
 stance of suspicion ' in deciding upon the fairness of the 
 transfer." ' 
 
 The case of Salmon v. Bennett 2 has exerted a potent 
 influence over decisions in this country concerning 
 voluntary conveyances. In the course of the opinion 
 Swift, C. J., said : 3 " Mere indebtedness at the time will 
 not, in all cases, render a voluntary conveyance void as to 
 creditors, where it is a provision for a child in considera- 
 tion of love and affection; for if all gifts by way of 
 settlement to children, by men in affluent and prosperous 
 circumstances, were to be rendered void upon a reverse 
 of fortune, it would involve children in the ruin of their 
 parents, and in many cases might produce a greater evil 
 than that intended to be remedied." This rule has been 
 applied to conveyances to wives, 4 as well as to children, 5 
 grandchildren, and other near relatives. 7 
 
 1 Born v. Shaw, 29 Pa. St. 292. 
 
 2 1 Conn. 525. See 24 Am. Law 
 Reg. N. S. 496. 
 
 3 Salmon v. Bennett, 1 Conn. 525, 
 542. • 
 
 4 See Clayton v. Brown, 17 Ga. 217 ; 
 s. c. again 30 Ga. 490 ; Weed v. 
 Davis, 25 Ga. 684 ; Goodman v. Wine- 
 land, 18 Reporter (Md.) 622 ; Kipp v. 
 Hanna, 2 Bland Ch. (Md.) 26 ; Filley 
 v. Register, 4 Minn. 391 ; Walsh v. 
 Ketchum, 12 Mo. App. 580 ; Patten v. 
 Casey, 57 Mo. 118 ; Potter v. Mc- 
 Dowell, 31 Mo. 62 ; Amnion's Appeal, 
 03 Pa. St. 284 ; Carl v. Smith, 8 Phila. 
 (Pa.) 569; Perkins v. Perkins, 1 
 Tenn. Ch. 537 ; Yost v. Hudiburg, 2 
 Lea (Tenn.) 627 ; Morrison v. Clark, 
 55 Tex. 437 ; Belt v. Raguet, 27 
 Tex. 471 ; Smith v. Vodges, 92 U. 
 S. 183 ; Lloyd v. Fulton, 91 U. S. 
 479 ; French v. Holmes, 67 Me. 186 ; 
 Winchester v. Charter, 12 Allen 
 (Mass.) 606. 
 
 5 See Dodd v. McCraw, 8 Ark. 83 ; 
 
 Smith v. Yell, 8 Ark. 470 ; Clayton v. 
 Brown, 17 Ga. 217 ; Patterson v. Mc- 
 Kinney, 97 111. 41 ; Worthington v. 
 Bullitt, 6 Md. 172; Worthington v. 
 Shipley, 5 Gil] (Md.) 449 : Smith v. 
 Lowell, 6 N. H. 67 ; Brice v. Myers, 5 
 Ohio 121 ; Crumbaugh v. Kugler, 2 
 Ohio St. 373; Grotenkemper v. Harris, 
 25 Ohio St. 510; Miller v Wilson, L5 
 Ohio 108; Posten v. Posten, 1 Wharl. 
 (Pa.) 27 ; Chambers v. Spencer, 5 
 Watts (Pa.)404 Mateer v. Hissim, 3 
 P. & W. (Pa.) 160 ; Burkey v. Self, I 
 
 Sn 1 (Tenn.) 121 ; Hinde's Lessee v. 
 
 Longworth, 11 Wheat. L99 ; Bracketl 
 v. Wait.', 4 Vt. 39, 6 Vt. Ill ; 
 Church v. Chapin, 35 Vt. 223 ; Lerow 
 v. Wihnarth, 9 Allen (Mass 386 
 Laughton v. Harden, 68 Me. 208; 
 Stevens v. Robinson, 72 Me. 381. 
 
 6 Bird v. BoMiir, 1 Mo. 701 ; Wil- 
 liams v. Banks. 11 Md. 198. 
 
 7 Pomeroy v. Bailey, 13 N. 11. 118. 
 See 24 Am. Law Reg. N. S. 497.
 
 438 PRIMA FACIE CASES OF FRAUD. § 243 
 
 § 243. Prima facie cases of fraud. — Taking a deed for prop- 
 erty in the name of the wife, which property was purchased 
 and paid for by the husband, who was involved in debt at 
 the time, was said to make a prima facie case of fraud 
 against creditors. 1 In Purkitt v. Polack 2 the court 
 observed : " The control of the property after the alleged 
 sale, the indebtedness of the grantor at the time, the 
 absence of the grantee from the State, and the failure on 
 the part of the latter to show any payment of considera- 
 tion, were amply sufficient to raise a prima facie intend- 
 ment of fraud in the transaction." In Reiger v. Davis, 3 
 the court remarked that when a much-embarrassed debtor 
 conveyed property of great value to a near relative, and 
 the transaction was secret, no one being present to witness 
 it but relatives, it was to be regarded as fraudulent. In 
 Wilcoxen v. Morgan 4 the court said that in addition to 
 the evidence of certain declarations made at the time of the 
 preparation of the conveyance, " the relationship of 
 the parties ; the fact that the conveyance was made with- 
 out the knowledge of the grantee ; the absence of 
 consideration, and the subsequent long-continued posses- 
 sion and dominion cf the premises by the grantor, 
 sufficiently manifest that the purpose of G. in this con- 
 veyance was to put the estate beyond the reach of his 
 creditors." When it appeared that after the conveyance 
 the debtor had no other property subject to execution, 
 that the grantee was his brother and had not means 
 sufficient to enable him to pay for the property, that the 
 debtor remained in possession and the grantee removed 
 out of the State, these, and certain admissions of the cov- 
 inous nature of the transfer, were considered sufficient to 
 show that the conveyance was made to protect the prop- 
 
 : Alston v. Rowles, L3 Fla. 117. 3 67 N. C. 186. 
 
 17 Cal. 327-332. « 2 Col. 477, 478.
 
 § 244 COMMENTS. 439 
 
 erty from creditors. 1 In Danby v. Sharp 8 it is -said that 
 a sale of an entire stock-in-trade to a clerk in the employ- 
 ment of the vendor is colorable and fraudulent as to the 
 creditors of the vendor, when the vendee has no means 
 except that he receives ten dollars a week for his services, 
 and where he pays nothing at the time of the sale, but 
 gives his unsecured promissory notes for the whole 
 amount of the purchase-money, and no public notice is 
 given of the change, but the business sign remains the 
 same, and the vendor is frequently about the premises. 
 In Moore v. Roe 3 the court held that the transfer of all 
 a debtor's property pending a suit against him ; the taking 
 of an absolute deed as security for money owing by the 
 debtor, and looseness or incorrectness in stating the con- 
 sideration of the conveyance, or in determining the value 
 of the property conveyed, were indications of fraud. 
 
 The further multiplication of these illustrations is a 
 work of doubtful utility. Indeed the resources of fraud- 
 ulent debtors are too great, the color and variety of the 
 devices to elude creditors too numerous, to render classi- 
 fication of the different schemes by attempted recitals of 
 details practicable. It is to be noticed that the illustra- 
 tions last given combine different badges of fraud, and it 
 is very common in creditors' suits to find many of these 
 indicia existing in a single case. 
 
 § 244. Comments. — Frequent comment is made upon the 
 extreme difficulty of the task of defining and establishing 
 fraud, and it seems to be regarded as impossible to 
 formulate exact rules as to what is and what is not fraud. 
 " To do so would be to give to persons fraudulently 
 inclined the power of evading the jurisdiction of the courts 
 by fresh contrivances which might be invented to elude 
 
 'McDonald v. Farrell, 60 Iowa *2 MacAr. (D. C.) 435. 
 
 337, 14 N. W. Rep. 318. 3 35 N. J. Eq. 90.
 
 44<-> ' ' "MMENTS. § 244 
 
 any invariable, inflexible rule." ' " As to relief against 
 frauds," says Hardwicke, " no invariable rules can be 
 established. Fraud is infinite, and were a court of equity 
 once to lay down rules how far the) would go, and no 
 further, in extending their relief against it, or to define 
 strictly the species or evidence of it, the jurisdiction 
 would be cramped and perpetually eluded by new schemes, 
 which the fertility of man's invention would contrive." 
 Vice-Chancellor Kindersley expressed the modern doc- 
 trine in these terms : " It was at one time attempted to 
 lay down rules that particular things were indelible badges 
 of fraud, but in truth, every case must stand upon its own 
 footing, and the court or the jury must consider whether, 
 having regard to all the circumstances, the transaction 
 was a fair one, and intended to pass the property for a 
 good and valuable consideration." 2 In Jones v. Nev- 
 ers, 3 Allen, C. J., said : " Every case must stand on its 
 own footing." But this leads to unsatisfactory and uncer- 
 tain results. The profession are not given sufficient 
 fixed rules with which to guide their actions, or advise 
 clients, and must resort to the wilderness of single 
 instances and complicated facts contained in the reports 
 to discover analogous cases. The courts protest that it 
 is not permissible to guess at the truth in the pursuit and 
 attempted discovery of fraud ; that fraud must be proved 
 and not presumed, and that speculative inferences are 
 not the proper foundation of a legal judgment. 4 Yet the 
 most casual reading of many reported decisions will 
 demonstrate that transfers of property have been avoided, 
 especially in equity, upon the most shadowy and intangi- 
 ble grounds, and that in many instances innocent pur- 
 
 M.iv - Fraudulenl Conveyances, •'Hale v. Metropolitan Omnibus 
 l» 80; Parke'a Hiatorj of Courl of Co., 28 L. J. Ch. 777. 
 Chancer; p 508 8e< §18 and note. 3 18 New Brunsw. 629. 
 
 J See §§ 5, 6.
 
 § 244 < OMMENTS. 44 l 
 
 chasers have been the victims of unfortunate circum- 
 stances. That, on the other hand, fraudulent alienees 
 have constantly escaped the meshes of the law, and 
 secured their ill-gotten gains, though the defrauded 
 creditors, and in some cases the courts, were inwardly 
 conscious of the fraud which both were powerless to 
 establish, is a matter of common experience. The 
 impulse " to color more strongly the constructive indica- 
 tions of fraud, for the protection of valuable rights," is to 
 be encouraged. The degrees of weight to be attached to 
 particular classes of indicia should be carefully considered, 
 for, in the present aspect of the law, the marks of fraud 
 which assume such prominence in this class of litigation 
 often, like a two-edged sword, injure both creditors and 
 bona fide alienees.
 
 CHAPTER XVII. 
 
 CHANGE OF POSSESSION — DELIVERY. 
 
 Change of possession must be 
 continuous. 
 
 Temporary resumption of pos- 
 session. 
 
 Concurrent possession insuffi- 
 cient. 
 
 Possession of bailee. 
 
 No delivery where purchaser 
 has possession. 
 
 When technical delivery is not 
 essential. 
 
 Excusing want of change of 
 possession. 
 
 Change of possession of realty. 
 
 Change of possession on judicial 
 sale. 
 
 Delivery of growing crops. 
 
 Possession with power of sale. 
 
 ' ' By the possession of a thing we always conceive the condition in which not only one's own 
 dealing with the thing is physically possible, but every other person's dealing with it is capable 
 of being excluded." — Von Savigny's Treatise on Possession, translated by Sir Erskine Perry, 
 p. 2. 
 
 §245. Concerning possession.— Possession, or " the own- 
 ing or having a thing in one's own power," ! with the right 
 to deal with it at pleasure, to the exclusion of others, 2 is 
 said to be a degree of title, although the lowest. 3 The 
 effect of a failure to change possession, more especially 
 as relating to sales of personalty, will be found upon 
 investigation to occupy a very prominent place in the law 
 regulating fraudulent conveyances. Indeed some of the 
 writers seem to lose sight of the other characteristics of 
 
 §245. 
 
 Concerning possession. 
 
 §257. 
 
 246. 
 
 Change of possession. 
 
 
 247. 
 
 Possession as proof of fraud. 
 
 258. 
 
 248. 
 
 Transfers presumptively or 
 
 
 
 prima facie fraudulent. 
 
 259. 
 
 249. 
 
 The New England cases. 
 
 
 250. 
 
 Rule in New York and various 
 
 260. 
 
 
 other States. 
 
 261. 
 
 251. 
 
 Fraudulent per se or conclu- 
 
 
 
 sive. 
 
 262. 
 
 252. 
 
 Practical results of the conflict- 
 
 
 
 ing policies. 
 
 263. 
 
 253. 
 
 Actual change of possession re- 
 
 
 
 quired. 
 
 264. 
 
 254. 
 
 Question for the jury. 
 
 265. 
 
 255. 
 
 Overcoming the presumption. 
 
 
 256. 
 
 Possession within a reasonable 
 
 266. 
 
 
 time. 
 
 267. 
 
 1 Brow i) v. Yolkening, 64 N. Y. 80. 
 
 Compare Pope v. Allen, 90 N. Y. 298. 
 
 •• Sullivan v. Sullivan, 66 N. Y. 41. 
 
 3 Swift v. Agnes, 33 Wis. 240 ; Raw- 
 ley v. Brown, 71 N. Y. 85 ; Mooney v. 
 Olsen, 21 Kan. 691.
 
 § 245 CONCERNING POSSESSION. 443 
 
 Twyne's Case, 1 and mistakenly treat the question of the 
 failure to change possession of the property as not only 
 the controlling but the exclusive feature of the case. In 
 Twyne's Case 3 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." 3 Hence Coke, in com- 
 menting upon this case, gives the following advice to a 
 donee : " Immediately after the gift take possession of 
 the goods, for continuance of possession in the donor is 
 a sign of trust." It will be at once manifest from this 
 statement that the modern law upon the subject must 
 have undergone a very material change since Coke wrote, 
 for the failure to consummate the sale or gift by change 
 of possession was then considered to be merely a mark, 
 sign, or badge of fraud. 4 We cannot but regard this 
 feature of the law as occupying too prominent a place, 
 and as receiving too great attention as applied to trans- 
 actions which it is sought to annul as fraudulent under 
 the statute of Elizabeth. 5 The theory is that a sale or 
 gift, unaccompanied by possession, is not apparent to third 
 parties, but, on the contrary, is contradicted by the con- 
 tinued visible possession of the vendor. Yet, in the case 
 
 1 See § 22. deceive and to defraud creditors and 
 
 8 3 Rep. 80, 81« ; Davis v. Schwartz, purchasers ; and the law always pre- 
 
 155 U. S. 639, 15 S. C. Rep. 237. sumes, even in criminal matters, that 
 
 3 See Putnam v. Osgood, 52 N. H. a person intends whatever is the natu- 
 
 156 : Wright v. McCormick, 67 Mo. ral and probable consequence of his 
 430 ; Barr v. Reitz, 53 Pa. St. 256; own actions." Uriswold v. Sheldon, 4 
 Manton v. Moore, 7 T. R. 72 ; also N. Y. 593. For exceptions to the gen- 
 Twyne's Case, 1 Smith's Lea. Cas. 1 ; eral rule see Bissell v. Hopkins, SCow. 
 " Sales and Conveyances without De- (N. Y.) 166, in notis. 
 
 livery of Possession," 18 Am. Law 5 In Davis v. Turner, 4 Gratt. (Va.) 
 
 Reg. (N. S.)137. See § 22. 441, the court observed : "Thetruth 
 
 4 " The statute does not introduce a is, there is something rather loose and 
 new rule, nor does it make a forced indefinite in the idea of a delusive 
 or unnatural presumption. The direct credit gained by the possessii m 1 »f per 
 tendency of a conveyance of goods sonal property." 
 
 without a change of possession is to
 
 444 CONCERNING POSSESSION. £-45 
 
 of bailments in their many forms, the possession is held 
 by parties who are not the owners, but this feature of the 
 relationship is not regarded as giving rise to any pre- 
 sumption of fraud. Any one can safely put his personal 
 property in another's possession, or give another the use 
 of it without imperilling his title. 1 It is said that " the 
 possession of property never owned by the possessor 
 raises no . ... presumption " of ownership. 2 This 
 surely is an unsatisfactory explanation of the distinction. 
 The acts of ownership exercised over property by a bailee 
 and by an owner, either before or after sale, are not 
 necessarily dissimilar. Inquiry in either case would gen- 
 erally be necessary to ascertain the status of the title. 
 The exercise of these very acts of ownership constitute 
 the mischief sought to be obviated by the rule calling for 
 change of possession. Chattels are not negotiable. 
 Possession is not, as in the case of mercantile paper and 
 money, an assurance of title, or of authority or power of 
 disposition. "The servant," said Woodruff, J., "intrusted 
 with the possession of his master's property, does not 
 thereby get authority to sell it, or to authorize another 
 to sell it. The borrower of a chattel, or the ordinary 
 bailee, does not, by his possession, gain any such power." : 
 A man cannot be deprived of his property without his 
 consent. 
 
 1 Capron v. Porter, 43 Conn. 389 gaged, and yet of which lie retained 
 
 Dillon, J., observes, that " the rule, the possession, enjoyment and appar- 
 
 deducing fraud as a conclusion of law ent ownership. The statute of 13 
 
 from the simple retention of pusses- Elizabeth did not declare that such 
 
 siuii by th«- vendor or mortgagor, retention would he fraudulent. This 
 
 originated in England in a very early was ;i doctrine of the courts." 
 
 day, when there were no registry Hughes v. Cory, 20 Iowa 402. See 
 
 laws, or none requiring such instru- Bullock v. Williams, H> Tick. (Mass.) 
 
 tnente to be registered. It was 33. 
 
 founded upon public policy. That 'Capron v. Porter, 43 Conn. 389. 
 
 policj was to prevent a part} from See Davis v. Bigler, 62 Pa. St. 242. 
 
 acquiring a false and deceptive credit B Spraighte v. Hawley, 39 N. Y. 
 
 "ii the strength of the possession of 446. 
 property which he had Bold <n mort-
 
 §246 CHANCE OF POSSESSION. 445 
 
 Surely it is obvious that to prohibit altogether the sepa- 
 ration of the title from the possession of personal property 
 would be incompatible with an advanced state of society 
 and commerce, and productive of great inconvenience and 
 injustice in the pursuits and business of life. 1 It would 
 be " a remedy worse than the disease." 
 
 §246. Change of possession. — It is believed that the rule 
 of the common law had its foundation in the doctrine 
 already noticed, that possession of personal property is 
 prima facie evidence of ownership. 2 To allow the owner 
 of such property to transfer the title by a secret convey- 
 ance, while retaining the possession and assuming to act 
 as the owner, was regarded as permitting a fraud upon 
 all persons who should deal with him upon the faith of 
 his ownership. 3 As we have said, the theory was that 
 his possession and apparent ownership gave him credit, 
 and afforded him the means of defrauding others. 4 An 
 agreement to let a vendor retain the possession and use 
 of the property after an absolute sale is not considered to 
 be a common and ordinary transaction in the usual course 
 of business. Such an arrangement, it is urged, excites 
 suspicion, and it is regarded in many of the cases as the 
 bounden duty of the courts, for the safety and protection 
 of creditors, to call upon and hold the vendee in all such 
 
 1 Davis v. Turner, 4 Gratt. (Va.) Justice Kent said, in Sturtevant v. 
 441. Ballard, 9 Johns. (N. Y.) 337, 339 : 
 
 2 Wallace v. Nodine, 57 Hun (N. " Delivery of possession is so much of 
 Y.) 239, 10 N. Y. Supp. 919. the essence of the sale of chattels 
 
 3 Roe v. Meding, 53 N. J. Eq. 350, that an agreement to permit the ven- 
 33 Atl. Rep. 394. dor to keep possession is an extraordi- 
 
 4 See Crooks v. Stuart, 2 McCrary, nary exception to the usual course of 
 15. " The controlling argument .... is dealing, and requires a satisfactory 
 the danger of false credit and fraudu- explanation." Again it is observed: 
 lent evasion of debt whenever delivery "Retention of possession not only 
 and change of possession do not ac- tends to give false credit to the seller, 
 company and follow change of prop- but it is a sign of a secret trusl in his 
 erty whether absolute or qualified," favor." Brawn v. Keller, 43 Pa St. 
 per Verplanck, Senator, in Cole v. 106. 
 
 White, 26 Wend. (N. Y.) 523. Chief-
 
 446 
 
 CHANGE OF POSSESSION. 
 
 246 
 
 cases, to explain clearly and satisfactorily how an abso- 
 lute sale could have been bona fide, and yet the vendor 
 retain the use and possession. 1 The change of which we 
 are speaking must be open and visible, and apparent by 
 the changed appearance of the property or of its cus- 
 tody.- In these controversies regard must be had as to 
 the character of the property, the nature of the trans- 
 action, the position of the parties, and the intended use of 
 the property. 3 
 
 Such is the general condition of the law relating to 
 this branch of the subject, whatever may be the force of 
 the criticisms suggested. The subject, by reason of its 
 prominence, calls for consideration, and for some discus- 
 sion of the many exceptions, real and apparent, to the 
 general rule, arising from the necessities incident to par- 
 ticular cases and from other causes. 4 
 
 1 Coburn v. Pickering, 3 N. H. 427. 
 It must be remembered tbat, by the 
 common law, delivery was not consid- 
 ered necessary upon a sale of chattels 
 to vest the title in the vendee (Miller 
 ads. Pancoast, 39 X. J. Law 253 ; Fra- 
 zier v. Fredericks, 24 N. J. Law 169 ; 
 Meeker v. Wilson, 1 Gall. 424; Mon- 
 roe v. Hussey. 1 Oreg. 190 : Davis v. 
 Turner, 4 Gratt. [ Va.] 426), as between 
 the parties. Philbrook v. Eaton, 134 
 Mass. 398,400; Parsons v. Dickinson, 
 11 Pick. (Mass.) 858: Packard v. Wood, 
 ) Gray (Mass.) 307. 
 
 • Shauer v. Alterton, L51 U. S. 623, 
 use. Rep. 442. 
 
 iwford v. Davis, 99 Pa. St. 576; 
 Renninger v, Spat/., 12s p a . St. 526, 
 18 \tl. Rep. 10:, ; Garretson v. Back- 
 enberg, 144 Pa. St. 113. 22 A 1 1 Rep. 
 The possession which will be 
 equivalent to actual notice to a subse- 
 quent purchaser, must be an open and 
 risible occupation. Holland v. Brown, 
 1 in N. V 848.35 N. E. Rep. 577. 
 
 1 Mr. May -a\ - in his 1 reatise "ii 
 
 Fraudulent Conveyances. 2d ed., p. 
 118 : "It by no means follows, though, 
 that because there is no possession 
 given therefore a transfer is fraudu- 
 lent ; for those cases where the judges 
 have said that if possession was not 
 given it was fraudulent (Edwards 
 v. Harben, 2 T. R 587 : Wordall v. 
 Smith, 1 Camph. 332; Macdona v. 
 Swiney, 8 Ir. C. L. R. 86) must be 
 taken with reference to the circum- 
 stances of each case. The question 
 of possession is one of much import- 
 ance, but that is with a view to ascer- 
 tain the good or bad faith of the 
 transaction (Abbott, C. J., in Latimer 
 v. Batson, 4 B. & C. 652; and see 
 Wundell v. Phipps, 10 Yes. 139 ; Kidd 
 v. Rawlinson, 2 Ii. & P. .19; Hoffman 
 v. Pitt, 5 Esp. 22. 25 ; Eastwood v. 
 Brown, Ry. & Mood. 312). In Arun- 
 del! v. Phipps (10 Yes. 139, 145), Lord 
 Eldon said that the mere circum- 
 stance of tlie possession of chattels. 
 
 however familiar it might !»• to say 
 that it proves fraud, amounts to no
 
 §247 POSSESSION AS PROOF OF FRAUD. 447 
 
 § 247. Possession as proof of fraud. — As we shall pres- 
 ently show, it is commonly stated in some of the reported 
 cases that the continued possession of the subject-matter 
 of the sale by the grantor or vendor is prima facie evi- 
 dence of fraud, while other authorities regard it as con- 
 clusive proof that the transaction is covinous. A learned 
 writer 1 has declared this to be a loose method of refer- 
 ring to the matter, and has ventured to assert that " a 
 careful examination of this branch of the law will show that 
 neither of the views so expressed is correct." The argu- 
 ment advanced by the writer is that bald possession is not 
 conclusive evidence of fraud ; it is only a circumstance 
 admissible in evidence with other circumstances as bear- 
 ing upon the question of the actual existence of fraud. 
 The conclusion drawn in the article mentioned is that 
 " possession is a link in a chain of circumstances, perti- 
 nent in proving fraud, having greater or less weight 
 according to the circumstances of each case," and " is not 
 necessarily either conclusive or prima facie evidence of 
 fraud." Some accompanying circumstances attending the 
 possession or, so to speak, coloring it, must be shown to 
 establish fraud. 
 
 The statutory policy introduced in a number of the 
 States, under which a failure to effect a change of pos- 
 session is made either presumptively or conclusively 
 
 more than that it is prima facie evi- and disposition of a bankrupt). There 
 dence of property in the man possess- is no sufficient authority for Baying 
 ing, until a title not fraudulent is that the want of delivery of posses- 
 shown under which that possession sion makes void a bill of sale of goods 
 has followed ; that every case, from and chattels ; it is prima facie evi- 
 Twyne's Case (3 Rep. 80 b; see the dence of a fraudulent intention, and 
 remarks of Littledale, J., in Martin- if it be a badge of fraud only, in order 
 dale v. Booth, 3 B. & Ad. 498, 505) to ascertain whether a deed be fraudu- 
 downwards, supports that, and there lent or not, all the circumstances musl 
 was no occasion otherwise for the be taken into consideration. (Per 
 statute of King James (21 Jac. 1 C. Patteson, J., in Martindala v. Booth, 
 19, §g 10, 11, which originated the 3 B. & Ad. 498, 587.)" 
 law with respect to property remain- ' Possession as Evidence of Fraud, 
 ing in the reputed ownership or order 11 Cent. L. J. 21.
 
 448 FRAUDULENT TRANSFERS. § 248 
 
 fraudulent, has robbed the. question of much of its import- 
 ance as a general proposition independent of local enact- 
 ment. We cannot but regard the theory advanced by 
 the writer referred to as sound, but we fail to discover that 
 the cases are in line with his arguments. 
 
 § 248. Transfers presumptively or prima facie fraudulent. — 
 The question of how far retention of possession of the 
 property by the vendor is to be considered as evidence of 
 fraud in its sale has been a subject of much consideration 
 by the courts and in legislative bodies in the United 
 States. 1 In some States the matter is regulated by 
 statute, but the statutes and the rules for their interpre- 
 tation vary in the different States. In other States the 
 question is left to be disposed of by the rules 
 and principles which obtain at common law The gen- 
 eral subject is capable of extended discussion, both 
 because of its importance and for the reason that the 
 authorities relating to it are full of subtle distinctions. 
 We can only consider its general outlines and notice the 
 leading cases and the important exceptions to the general 
 rule in the principal States. The main struggle is 
 between two policies and rules of evidence or proof, viz.: 
 whether the neglect to change possession of the property 
 shall be considered presumptively or conclusively fraudu- 
 lent as to creditors. The prevalent policy is to consider 
 the absence of a change of possession as prima facie or 
 presumptive evidence of fraud. a 
 
 ii must i"- remembered thai "the (N. ?.) 156; Beals v. Guernsey, 8 
 
 statute with its presumptions founded Johns. (N. T.) 446 ; Barrow v, Paxton, 
 
 11 1 »« » 1 n-delivery and absence of 5 Johns. (N. Y.) 258 ; Curtin v. Isaac- 
 
 rhanged possession draws no distinc- sen, 36 W. Va. 891, 15 S. E. Rep. 171 ; 
 
 tion between modes of transfer." Bartletl v. Cleavenger, 85 \Y. Va. 
 
 Stimson v. Wrigley, 86 N. Y. 387. 71!), MS. E. Rep. 373. [n Bissell v. 
 
 •See Crawford v. Kirksey, 55 Ala. Hopkins, :* Cow. (N. Y) L66, 188, 
 
 800; Mayer v. Clark, 40 Ala. 259; Savage, Chief .lustier. s:ii.l : "The 
 
 Vredenbergh v. White, 1 Johns. Cas. possession by the vendor of personal
 
 § 249 
 
 THE NEW ENGLAND CASES. 
 
 I \9 
 
 £ 249. The New England cases.— The cases supporting 
 the former theory will be first noticed, giving brief ((no- 
 tations from leading authorities. In Massachusetts, 
 "possession of the vendor is only evidence of fraud, 
 which, with the manner of the occupation, the conduct of 
 the parties, and all other evidence bearing upon the ques- 
 tion of fraud, is for the consideration of the jury. " ' In 
 New Hampshire it is said that " in cases of absolute sales, 
 possession and use by the vendor, after the sale, is always 
 prima facie, and, if unexplained, conclusive evidence of a 
 secret trust." 2 So in Maine failure to change possession 
 is presumptive evidence of fraud, and the jury are to 
 determine the good faith of the transaction. 3 In Roth- 
 
 chattels after the sale is not conclu- 
 sive 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 agree- 
 ment not inconsistent with honesty in 
 the transaction, hold under his pur- 
 chase against creditors." See Davis 
 v. Turner, 4 Gratt. (Va.) 422, where 
 the doctrine of fraud per se is exam- 
 ined and repudiated. See Forkner v. 
 Stuart, 6 Gratt. (Va.)197; Howard v. 
 Prince, 1 1 N. B. R. 322. 
 
 1 Ingalls v. Herrick, 108 Mass. 354 ; 
 Shurtleff v. Willard, 19 Pick. (Mass.) 
 202 ; Brooks v. Powers, 15 Mass. 244 ; 
 Hardy v. Potter, 10 Gray (Mass. ) 89 : 
 In Dempsey v. Gardner, 127 Mass. 
 381, Gray, C. J., said: "By the law 
 as established in this commonwealth, 
 it was necessary, as against subse- 
 quent purchasers or attaching cred- 
 itors, that there should be a delivery 
 of the property. No such delivery, 
 actual or symbolical, was proved. 
 The buyer did no act by way of tak- 
 ing possession or exercising owner- 
 ship, and the seller did not agree fco 
 29 
 
 hold or keep the horse for him 
 
 There was no evidence of delivery for 
 the consideration of the jury, excepl 
 such as might be implied from tin- 
 execution and delivery of the bill of 
 sale. That was not enough. Carter 
 v. Willard. 19 Pick. (Mass.) I ; 
 Shumway v. Rutter, 7 Pick. (Mass.) 
 56, 58, 8 Pick. (Mass.) 443. 147; 
 Packard v. Wood, 4 Gray (Mass. ) 307 ; 
 Rourke v. Bullens, 8 Gray (Mass.) 
 549 ; Veazie v. Somerby, 5 Allen 
 (Mass.) 280, 289; Ashcrofl v. Sim- 
 mons, 163 Mass. 437, 40 N. E. Rep. 
 171." 
 
 2 Coburn v. Pickering, 3 N. H. 428 ; 
 Doucet v. Richardson 1 X II. 1892) 
 29 Atl. Rep. 635. See Lang v. Stock- 
 well, 55 N. H. 561 ; Cutting v. Jack- 
 son, 56 N. H. 253; Sumner \ Dal tun, 
 58 N. H. 295; Stowe v. Tall, 58 N. 
 H. 445; Shaw v. Thompson, 43 V II. 
 130 ; Harrell v. Godwin, 102 N. ( . 330, 
 8 S. E. Rep. 925;Rawson Mfg. Co. 
 v. Richards, 69 Wis. 643, 35 N. W. 
 Rep. 40. 
 
 8 Shaw v. Wilshire, 65 Me 485; 
 Bartlett \. Blake, 37 Me. [24 . Fair 
 field Bridge Co. v. Nye, 60 M< 
 ( roogins v. » lilmore, IT Me. 9 ; Reed
 
 450 
 
 i;i |] in NEW YORK AND OTHER STATES. 
 
 § ?5o 
 
 child v. Rowe ' the Supreme Court of Vermont said : 
 " The law is well settled in this State that there must be 
 a substantial and visible change of possession to protect 
 property from attachment by the creditors of the vendor. 
 . . . . The vendee must acquire the open, notorious and 
 exclusive possession of the property, and this implies that 
 the vendor is divested of the use, possession, or employ- 
 ment of the property." 2 The rule that non-delivery of 
 possession is prima facie evidence of fraud obtains in 
 Rhode Island. 3 
 
 S 250. Rule in New York and various other States. — After 
 much fluctuation and discussion, the general rule is now 
 established by statute in New York, that the retention of 
 possession by the vendor is presumptively fraudulent. 
 This presumption may be overcome by proof satisfactory 
 to a jury that the retention of possession was in good 
 faith, for an honest purpose, and with no design to 
 defraud creditors. 1 In other words, evidence may be 
 
 v. Reed, To Me. 506. In the latter 
 tin- omrt says : "Without de- 
 livery the title does doI pas- as 
 against an attaching creditor.' 1 Rob- 
 . n- v Bawn, 20 < '"I. 77, 36 Pac. Rep. 
 Barkness v. Russell, 118 U S 
 663, 7S. C Rep. 51 ; cf., Stephens v. 
 Gifford, 137 Pa St. 319, 20 Atl. Rep. 
 542. 
 
 11 Vt. 389, 
 
 1 Sompare Kendall v. Samson. 12 
 Vt. 515; Ridoul v. Burton, 27 Vt 
 Jewetl v. Guyer, 38 VI 209; 
 Fish v. Clifford. .->l Vt. 34 I ; Weeksv. 
 Preucott. 58 VI 
 
 Sarle v. Arnold, 7 R. I. 582 ; 
 
 Head v Gardiner, 1:; R. I. 257. See 
 
 [with v Burrough, L3 R. I 294 ; 
 
 1. II v Fairbrother, L2 R. I '.':;:{ 
 
 \- to tin- rule in Connecticul 
 
 .' 251 
 
 1 v. Loomis, 29 N Y U2 ; 
 
 Blaul v. Gabler, 77 X. Y. 461 : Stark 
 v. Grant, 42 X. Y. St. Rep. 36, 16 N. Y 
 Supp. 526 ; Parmenter v. Pitzpatrick, 
 60 Hun (N. Y.) 580, 11 N. Y. Supp. 
 71 s : Wallace v. Nodine, 57 linn 
 (N. Y.) 250, 10 N. Y. Supp. 919; 
 Siedenbach v\ Riley, ill N. Y. .")60, 
 20 X. Y. St. Rep. 124, L9 N. E Rep. 
 275 ; Preston v. Southwick, 115 X. V. 
 139, 21 X. E. Rep. 1031; PrentissToolA 
 Supply Co. v. Schirmer, 136 X. Y. 305, 
 32 N. E. Rep. 849. The facl thai a 
 valuable consideration was paid does 
 m»t shift the burden <>(' proof. Wal- 
 lace v. Nodine, 57 Hun (N. Y. 1 239, 
 in N. Y. Supp. 919; Miller v. Lock- 
 wood, 32 N. Y. 293 ; Ford v. Wil- 
 liam-. 24 X. Y. 359; Hollacher v. 
 I ' Brien, 5 Bun (N. Y.) 277 ; Burn- 
 ham \. Brennan, 71 N. Y. V)7 ; 
 Thompson v. Blanchard, I X. V. 303 ; 
 Mumper v. Rushmore, 79 X. Y. 1«J.
 
 §250 
 
 RULE TN NEW VdkK A.ND OTHER S'l V.TES. 
 
 I-Si 
 
 given to repel the arbitrary inference of fraud resulting 
 from the neglect to change possession. 1 If good faith is 
 established, it is not essential in that State to show "a 
 good reason for the want of change of possession," 8 which 
 is certainly crowding the rule to an extreme limit hostile 
 to the creditor interests. The principle that the possession 
 may be explained is extensively recognized. In addition 
 to the States already named, it obtains in New Jersey, 3 
 Rhode Island, 4 West Virginia, 5 Virginia, 6 Alabama, 7 
 Louisiana, 8 Ohio, 9 Indiana, 10 Michigan, 11 Minnesota, 1 " Wis- 
 
 1 Stark v. Grant, 42 N. Y. St. Rep. 
 36, 16 N. Y. Supp. 526. 
 
 2 Mitchell v. West, 55 N. Y. 107 ; 
 Hanford v. Artcher, 4 Hill (N. Y.) 271. 
 
 3 Miller ads. Pancoast, 29 N. J. 
 Law 253 ; Sherron v. Humphreys, 
 
 14 N. J. Law 220. " The possession 
 by the vendor of personal chattels, 
 after the sale, is not conclusive evi- 
 dence 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 sale was in pur- 
 suance of some agreement not incon- 
 sistent with honesty in the trans- 
 action, hold under his purchase 
 against creditors." Miller ads. Pan- 
 coast, 29 N.J. Law 253. But see Roe 
 v. Meding, 53 N. J. Eq. 356, 33 Atl. 
 Rep. 394, and Fletcher v. Bonnet, 51 
 N. J. Eq. 618, 28 Atl. Rep. 601, as to 
 the necessity for and effect of filing 
 mortgages on chattels. 
 
 4 Harris v. Chaffee, 17 R. I. 193, 21 
 Atl. Rep. 104 ; Mead v. Gardiner, 13 
 R. I. 257 ; Sarle v. Arnold, 7 R. I. 582. 
 
 5 Curtin v. Isaacsen, 36 W. Va. 391, 
 
 15 S. E. Rep. 171. 
 
 6 Howard v. Prince. 11 N. B. I." . 
 322 ; Davis v. Turner, 4 Gratt. (Va. ) 
 423, a leading case of international 
 
 repute; Norris v. Lake, 89 Va. 513, 
 16 S. E. Rep. 663. 
 
 7 Mayer v. Clark, 10 Ala, 259; 
 Crawford v. Kirksey, 55 Ala. 282; 
 Moog v. Benedicks, 49 Ala. 512 ; Mc- 
 Ghee v. Importers' & T. Nat. I '.aide, 93 
 Ala. 192, 9 So. Rep. 734. 
 
 8 Keller v. Blanchard, 19 La. Ann. 
 53; Guice v. Sanders, 21 La, Ann. 463 ; 
 Devonshire v. Gauthreaux, 32 La. Ann. 
 1132; Yale v. Bond, 45 La. Ann. 997, 
 13 So. Rep. 587. 
 
 9 Hombeck v. Vanmetre, 9 Ohio 
 153 : Collins v. Myers, 16 Ohio 547 : 
 Thorne v. Bank, 37 Ohio St. 254. 
 
 111 Kane v. Drake. 27 Ind. 29 ; Rose 
 v. Colter, 76 Ind. 590; New Albany 
 Ins. Co. v. Wilcoxson, 21 Ind. 355; 
 Seavey v. Walker, 108 Ind. 78, 9 N. E. 
 Rep. 347. 
 
 11 Molitor v. Robinson, 40 Mich. 800, 
 perCooley J. ; Kipp v. Lamoreaux, 81 
 Mich. 304,45 N. W. Rep. 1002; Buhl 
 Ironworks v. Teuton, 67 Mich. 623, 
 35 N. W. Rep. 804. 
 
 '• Blackmail v. Wheaton, L3 Minn. 
 326; Benton v. Snyder, 22 Minn. 247; 
 Lathrop v. Clayton, 15 Minn. 104, 47 
 N. W. Rep. 544 ; Mack, liar v Pills- 
 bury, 48 Minn. 399, 51 N. W. Rep. 222; 
 ( lamp v. Thompson, 25 Minn. l?">.
 
 
 FRAl I 'i I 1 NT PER SI . § 25 1 
 
 consul, 1 Nebraska," Nevada,' Arkansas, 1 Kansas,"' South 
 Carolina," Texas, 7 in the Federal tribunals, 8 and the 
 District of Columbia. 9 
 
 S251. Fraudulent per se or conclusive. — The cases just 
 considered give what may be termed the equitable and 
 charitable view of the question. But the policy embodied in 
 many of these cases, and in the statutes upon which they 
 are in certain instances founded, is not considered in some 
 of the States rigid or severe enough to suppress the evils 
 supposed to be engendered by this class of transactions. 
 Thus, in Connecticut, Loomis, J., in delivering the opinion 
 of the court in the case of Capron v. Porter, 10 observed : 
 "That the retention of the possession of personal property 
 by the vendor after a sale raises a presumption of fraud 
 which cannot be repelled by any evidence that the trans- 
 action was bona fide and for valuable consideration, is 
 still adhered to and enforced by the courts in this State 
 with undiminished rigor, as a most important rule of public 
 policy. The reason of the rule is that as against a person 
 who was once the owner of the property, and all who 
 claim by purchase from him, the continued possession is 
 
 1 Wheeler v. Konst, 46 Wis. 398, Rep. 835: Stix v. Chaytor, ■">•'.. Ark. 
 
 1 X. W. Rep. 96; BlakesJee v. Ross- 117. 1? S. W. Rep. 707. 
 
 man, 13 Wis. 116; Osen v. Sherman, Phillips v. Reitz, 16 Kan. 396. 
 
 27 Wi- 505; Manufacturers' Bk. v. « Pregnall v. Miller, 21 S. C. 335. 
 
 Rugee, 59 Wis. 221,18 X. W. Rep. 'Traders' Nat. Bank v. Day. 87 
 
 251; Norwegian Plow ('<>. v. Han- Tex. in:;, jus. W. Rep. 1019; Gibson 
 
 thorn, 71 Wis. 529, 37 N. W. Rep. 825. v. Hill, 21 Tex. 225; Edwards v. 
 
 » Uhl v. Kol>is«m, 8 Neb. 272: Dickson, 66 Tex. 613, 2 S. W. Rep. 
 
 Densi • F.Tomer, 11 Neb. 392, 15 71*. 
 
 N. W Rep 731 : Paxton v. Smith, II s Warner v. Norton, 20 How. 448. 
 
 Neb. 56, 59 N. W Rep. 690. But Bee Hamilton v. Russel, 1 Cranch 
 
 Conway v. Edwards, <; Nev. 190. 310: Traversv. Ramsay, 3 Cranch »'. 
 
 Compare Doak v. Brubaker, 1 Nev. C. 354, 24 Fed. Cas. 1 13. 
 
 nini v. Kyle, 17 Nev, 209 » Justh v. Wilson, 19 Dist. Col. 529. 
 
 43 I lonn. 383 ; Gilbert v. Decker, 
 
 Norris, 28 \rk. 128. It 53 Conn. 405, 1 \tl. Rep. 685 ; Hueb- 
 
 is held in that State thai a construe- ler v. Smith. 62 Conn. 191, 25 Atl. 
 
 tive delivery i- sufficient. Shaul v. Rep. 658; Batetal v. Blakeslee, II 
 
 Harrington, 54 Ark, 805, 15 S. W. Conn. 302.
 
 § J5 1 FRAUDULENT PER SE. 45 5 
 
 to be regarded as a sure z'ndz'czum of continued ownership, 
 and that the possessor would obtain by such continued 
 possession a false credit to the injury of third persons, 
 if there was no such rule to protect them." 1 Clow v. 
 Woods 2 is the leading- case in Pennsylvania. Gibson, J., 
 said : " Where possession has been retained without any 
 stipulation in the conveyance, the cases have uniformly 
 declared that to be, not only evidence of fraud, but fraud 
 per sc. Such a case is not inconsistent with the most 
 perfect honesty ; yet a court will not stop to inquire 
 whether there be actual fraud or not ; the law will impute 
 it, at all events, because it would be dangerous to the 
 public to countenance such a transaction under any cir- 
 cumstances. The parties will not be suffered to unravel 
 it and show that what seemed fraudulent was not in fact 
 so." 3 In Born v. Shaw, 4 the court observed: "When 
 possession is retained by the vendor, it is not only 
 evidence of fraud, but fraud per se." In Maryland 5 a bill 
 of sale may be recorded, and the title of the grantee is then 
 as effectually protected as if the sale had been accom- 
 panied by delivery. It is a well-settled doctrine in Ken- 
 
 1 Compare Osborne v. Tuller, 14 Shaw v. Levy, IT S. & R. (Pa.) 99 ; 
 
 Conn. 529; Norton v. Doolittle, 32 Born v. Shaw, 29 Pa. St. 288 ; Young 
 
 Conn. 405 ; Elmer v. Welch, 47 Conn. v. McClure, 2 W. & S. (Pa.) 151. 
 
 56; Hull v. Sigsworth, 48 Conn. 258; "Clow v. Woods, 5 S. & R. (Pa.) 275, 
 
 Hatstat v. Blakeslee, 41 Conn. 301 ; decided by this court inl819, is the 
 
 Seymour v. O'Keefe, 44 Conn. 128; magna charta of our law upon this 
 
 Meade v. Smith, 16 Conn. 346. See subject," per Sharswood, J., in 
 
 especially Hamilton v. Russel, I McKibbin v. Martin, 64 Pa. St. 356 
 
 Cranch 310 ; and compare Warner v. Stephens v. Gifford, IS7 Pa. Si 219, 
 
 Norton, 20 How. 448 ; Gibson v. Love, 20 Atl. Rep. 542. But as to Bubse- 
 
 4 Fla. 217; Monroe v. Hussey, 1 quent creditors, actual intent to 
 
 Oregon 188. defraud must be shown. Ditman v. 
 
 J 5S. &R. (Pa.) 280. • Raule, 124 Pa. St. 225,16 Atl. Rep 
 
 3 See Thompson v. Paret, 94 Pa. St. 819. 
 
 275 ; Pearson v. Carter, 94 Pa. St. 4 29 Pa. St. 292, 
 
 156; McKibbin v. Martin, 61 Pa. B Kreuzer v. Cooney, 45 Md. 582, 
 
 St. 352; Garman v. Cooper, 72 Pa. « Clary v. Prayer. 8 G. & J. (Md.) 
 
 St. 37 ; Worman v. Kramer, 73 Pa. St. 416. See Price v. Pitzer, 11 Md. 527. 
 
 378 : Dawes v. Cope, 4 Binn. (Pa.) But see Smith v. Hunter, 5 Cranch < ! 
 
 258 ; Davis v. Bigler, 62 Pa. St. 242 ; C. 467, 22 Fed. Cas. 574.
 
 454 
 
 < ONFL1CTING POLICIES. 
 
 §252 
 
 tucky that where there is an absolute sale of movable 
 property, the possession must accompany the title, or the 
 sale will be void in law as to creditors or subsequent pur- 
 chasers, even though the contract contain a stipula- 
 tion that the vendor is to retain the possession till a 
 future day. 1 After much conflict,' the rule seems to be 
 established in Missouri that a sale without delivery of 
 possession is conclusively presumed to be fraudulent. 8 In 
 Illinois it is fraud per se to leave the vendor in posses- 
 sion. 4 Much the same policy is pursued in Iowa, 5 Cali- 
 fornia, Colorado, 7 and Delaware. 8 
 
 § 252. Practical results of the conflicting policies. — Brush- 
 ing aside for the present the objections already outlined 
 to the prominence accorded the question of change of 
 
 Robbins v. Oldham, 1 Duv. (Ky.) 
 28 ; Brummelv. Stockton, 3 Dana (Ky.) 
 135; Bradley v. Buford, Sneed 
 (Ky.) 12; Morton v. Ragan, 5 Bush 
 K\ . I 334; cf. Vanmeter v. Estill, 78 
 K j 456. See Cummins v. Griggs, 2 
 DuvalliKv -: 
 
 8 See Claflin v. Rosenberg, 42 Mo. 
 448: Rocheblave v. Potter, 1 Mo. 561; 
 Foster v. Wallace, 2 Mo. 231; Siblej v. 
 Bood, :; Mo. 290; King v. Bailey, 6 
 Mo 575; Shepherd v. Trigg, 7 Mo. 151. 
 Claflin \. Rosenberg, 4-2 Mo, 448 ; 
 Bishop v. O'Connell, 56 Mo. 158; Bur- 
 gerl v. Borchert, 59 Mo. 80; Wrighl 
 v. McCormick, 67 Mo. 426. See state 
 ex ril. Baumunk v. Goetz, 131 Mo. 
 33 s w. Rep. 161. 
 
 •Thompson \. Seek, 2] III. 73; 
 Ticknor v. McClelland, 84 111. 471 ; 
 Deering \ Washburn, ill 111. 153, 29 
 N. E. Rep. 558 Buschle v. Morris, 
 131 111. 588, ,':; N. E. Rep. 648; Rozier 
 v. Williams. 92 III. is? ; Johnson v. 
 Holloway, 82 III. :'.:JI . Richardson 
 \ Rardin, 88111. 124; ( Ireenebaum v. 
 Wheeler,90 III. 296 ; Hart v. Win-. II 
 III. 1 ! 1 I'.nt the rule 'Iocs not apply 
 
 when the possession of the vendor is 
 consistent with the deed of sale, or 
 where the sale is of such a public 
 character as to give notoriety thereto. 
 Lowe v. Matson, 140 111. 108, 29 N. E. 
 Rep. 1036. 
 
 5 Prather v. Parker, 24 Iowa, 26; 
 Boothby v. Brown, 40 Iowa 104 ; Hes- 
 ser v. Wilson, 36 Iowa 152 ; Sutton v. 
 Ballou, 46 Iowa 517. See Wessels v. 
 McCann, 85 [owa 424, 52 N. W. Rep. 
 346. 
 
 ,; See Lay v. Neville, 25 Cal. 552 . 
 Hesthal v. Myles, 53 Cal. 623 ; Woods 
 v. Bugbey, 29 Cal. 466; Brown v. 
 O'Neal, 95 Cal. 262, 30 Pac. Rep. 538 ; 
 Howe v. Johnson, 107 Cal. 67, 40 Pac. 
 Hep. 42 ; Rohrbough v. Johnson, 107 
 Cal. 149, 40 Pac. Rep. 37. 
 
 1 Allen v. Steiger, 17 Col. 552, 31 
 Pac. Rep. 226; Ray v. Raymond, 8 
 Col. 167, 9 Pac. Hep. 15; Finding v. 
 1 1 art man, 14 Col. 596, 23 Pac. Rep. 
 1004 ; Roberts v. Hawn, 20 Col. 77, 36 
 Pac. Rep. 886. 
 
 ■ Mill.-r v. Lacey, 7 Houst. (Del.) 8, 
 30 Atl. Hep. 640.
 
 §252 CONFLICTING POLICIES. 455 
 
 possession in controversies of the class under con- 
 sideration, it becomes important to consider which of 
 the two rules or policies just instanced is the more 
 salutary in practice. Possibly the creditor class would 
 oftener effect a recovery when the presumption of 
 fraud from failure to change possession is absolute. 
 It does not follow, however, that the latter rule is 
 a wise one, or the recovery in such cases always just. " In 
 seeking to catch rogues" it is not the proper function of 
 the courts to " ensnare honest men. We 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 detection or prevention should treat honest men 
 as guilty, or teach them to be always suspicious of their 
 neighbors, and watchful that honest acts be precisely 
 measured according to the standard of legal morality." ' 
 Parties designing to make covinous alienations will so 
 frame their actions as to endeavor to leave no indicia, or 
 to create no presumptions of fraud. Honest people, on 
 the other hand, conscious of no design to wrong others, 
 and giving little thought to the appearance or form of the 
 transaction, are often the victims of unfortunate circum- 
 stances, and suddenly discover that the law imputes to 
 their innocent acts or omissions wicked designs, than 
 which nothing- was further from their minds. Hence 
 Cabell, J., in commenting upon the mischievous operation 
 of the absolute rule as to change of possession, said : " I 
 have found myself compelled as judge to pronounce 
 transactions to be fraudulent and void as to creditors 
 which were known to be perfectly fair and bona fuh\ and 
 were not intended or calculated to delay, hinder, or 
 defraud creditors." 2 The rule creating a fraudulent 
 
 1 Hugus v. Robinson, 24 Pa. St. 2 Davis v. Turner, t GJratt. (Va.) 
 
 11. 422. 471.
 
 456 CONFLICTING POLICIES. §252 
 
 presumption in these cases seems to be sufficiently severe 
 in its operation. A policy which blindly ignores the real 
 intent of the parties, practically excludes all evidence 
 concerning the transaction or its underlying motives, and 
 conclusively brands it as fraudulent by closing the 
 mouths of the witnesses, should be adopted with great 
 reluctance. In such cases "the question is not whether 
 the transaction was honest or otherwise, but whether 
 there is not that evidence of fraudulent intent which pre- 
 cludes inquiry into its integrity as a question of morals." 
 It is a rule of policy as well as of evidence. 1 It seems 
 clear that : " The statute of frauds ought not to be con- 
 strued to make innocent parties sufferers." 2 That such 
 is often the result cannot be questioned. It was found in 
 Virginia that the cases of honest transfers in which the 
 vendor retained possession were too numerous and too 
 frequent to allow of a further adherence to the old 
 arbitrary rule of fraud per se. It resulted in the decision 
 of Davis v. Turner, 3 repudiating the rule as to absolute 
 presumptions. The court said : " It seems to be 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, and it is better to confine the interposition of the 
 court to guiding, instead of driving them by instructions, 
 and to the power of granting new trials in cases of plain 
 deviation." In the same case the court observe that the 
 conclusive presumption as a test of a fraudulent purpose 
 has no claim to certainty ; on the contrary, it concedes 
 its own fallibility, by crushing mercilessly the most 
 convincing evidence of fairness and good faith. 4 
 
 Kirtland \. Snow, 20 ('nun. 28. 4 Cole, v. White. — "But when we 
 
 1 Sydnor v. Gee, 4 Leigh (Va.) 545 ; lookatthe daily business of life, out 
 
 Cadogan v. Kennett, 2 Cowp. 132, of court, another aspect of this ques- 
 
 I" 1 Lord Mansfield tion presents itself. Mortgages of 
 
 I Gratt. (Va.) 428, 111 personal property, as ships, lake
 
 § 2 53 
 
 CHANGE I IF Pi ISSESSION. 
 
 45/ 
 
 i< 253. Actual change of possession required. — The words 
 " actual and continued change of possession " in the stat- 
 ute in New York, are construed to mean "an open pub- 
 lic change of possession, which is to continue and be 
 manifested continually by outward and visible signs, such 
 as render it evident that the possession of the judgment- 
 debtor has ceased." l In Crandall v. Brown, 2 the court 
 observed that " possession cannot be taken by words and 
 inspection." It must be unequivocal, carrying with it the 
 usual marks and indications of ownership by the vendee. 3 
 In Otis v. Sill, 4 Paige, J., said : " It has been repeatedly 
 decided that ' if an assignee or morteaeee leaves o-oods 
 assigned or mortgaged in the possession of the assignor 
 or mortgagor as his agent, this is not an actual change of 
 
 vessels, canal boats, and river craft ; 
 the stock and implements of the 
 mechanic or small manufacturer ; the 
 furniture of the innkeeper ; assign- 
 ments for the benefit of creditors, 
 leaving the goods and debts assigned 
 publicly to be managed and disposed 
 of by the original owner as an agent, 
 best acquainted with the business, 
 and acting for the benefit of creditors 
 who have full confidence in his 
 integrity : all these have grown out 
 of the usages of modern society ; the 
 necessities of commerce ; the conven- 
 iences of daily life ; the wants and 
 usages of trade and industry. They 
 have followed in the train of com- 
 merce, credit, and enterprise. Like 
 them, they have been largely produc- 
 tive of benefits to society ; yet those 
 benefits, like the results of all other 
 human action, are not unmixed with 
 evil. By such means the adventure, 
 capacity, acquirements, and industry 
 of the young or needy have been aided 
 and stimulated ; large concerns of 
 honorable but unfortunate merchants 
 have been settled to the greatest 
 advantage of the creditors and the 
 
 least possible loss of the insolvent ; 
 and the kindness of parents or the 
 generosity of friends has been enabled 
 to preserve the comforts of a home to 
 the wife and children of a bankrupt 
 without the slightest injury or fraud 
 (save in legal fiction) to prior creditors 
 or subsequent purchasers. Society 
 reaps nothing but unquestioned 
 benefit from nine -tenths of such 
 assignments or securities occurring in 
 actual life." Cole v. White, 26 
 Wend. (N. Y.) 52:5. 
 
 1 Topping v. Lynch, 2 I Job. (N. Y.) 
 488; approved in Steele v. Benham, 
 84 N. Y. 638. Compare Hale v. 
 Sweet, 40 N. Y. 97; Cutter v. < ope- 
 land, 18 Me. 127; Osen v. Sherman. 
 27 Wis, 501; Lesem v. Herriford, II 
 Mo. 323 ; Morgan v. Ball, 81 Cal. 93, 
 22 Pac. Rep. 331, 5 L. K. A. 579 . 
 Smith v. Moore, 4 Tex. App. Civ. 
 Cases, S 217. 
 
 - 18 Hun (N. Y.)461, 463. 
 
 3 Shatter v. Alterton, 151 tf. S. 624, 
 
 14 S. C. Rep. 442; Stevens v. hum. 
 
 15 Cal. 507. 
 
 4 8 Barb. (N. Y.) 102, 122.
 
 458 CHANGE OF POSSESSION. i -S3 
 
 possession within the meaning of the fifth section of the 
 statute of frauds." * Rolling barrels of whiskey apart 
 from the rest of the stock in the vendor's store and mark- 
 ing them with the buyer's name is not a change of pos- 
 session. 2 In Billingsley v. White, 3 Williams, J., in 
 delivering the opinion of the Pennsylvania Supreme 
 Court, said: "The delivery must be actual, and such as 
 the nature of the property or thing sold, and the circum- 
 stances of the sale will reasonably admit, and such as the 
 vendor is capable of making." A mere symbolical or con- 
 structive delivery, where an actual or real one is reason- 
 ably practicable, is of no avail, unless the property is not 
 capable of actual delivery. 4 There must be an actual 
 separation of the property from the possession of the 
 vendor at the time of the sale, or within a reasonable 
 time afterward, according to the nature of the property. 5 
 Where a husband gave his wife a bill of sale which she 
 accepted, and appointed him custodian of the property, 
 this was deemed sufficient. 6 It is good if the possession 
 taken of the goods is such as the nature of the case would 
 permit.' The fact that the vendor is retained as a clerk 
 in charge of the goods is considered in some of the cases 
 to be only a circumstance bearing upon the question of 
 good faith, 8 and is not in itself sufficient to invalidate the 
 
 'See Hanford v. Artcher, 4 Hill 55 Pa. St. 393 ; Pierce v. Kelly, 35 Ore. 
 
 N. X - .) 271. 9.1; Chickering v. White, 4'.2 Minn. 
 
 Burchinell v. Weinberger, 4 Col. 457, 44 N. W. Rep. 988 ; Morrison v. 
 
 A pp. 6, :;i Pac. Hep. 911. Oium, 3 N. Dak. 76, 54 X. W. Rep. 
 
 V.) l';i. St. 460. 288 : ('only v. Friedman, 6 Col. App. 
 
 • Lathrop v. < layton, 45 Minn. 124, 160, 40 Pac. Rep. 348. 
 
 47 N. W Rep. 544. 6 State ex rel. Brown v Mitchell, 
 
 Where the goods are Locked up 102 N. C. 348, 9 S. E. Rep. 102. 
 
 and the keys are delivered to the Manton v. Moore, 7 T. R. 71. 
 
 vendee, ;u><l thevendor removes from ' Smith v. Craft, 123 U. S. 436, 8 
 
 tli«' house, tin- is as effectual as S. C. Rep. 196 ; Bamberger v. School- 
 
 thougfa the vendee had actually re- held, 160 U. S. 164, 16 S. C. Rep. 225; 
 
 moved the property. Barr v. Reitz, Murray v. McNealy, *6 Ala 234, 5 
 
 58 Pa 81 556 See Benford v. Schell, So. Rep. 565; Richardson v. String-
 
 §254 QUESTION FOR THE JURY. 1 459 
 
 sale, but his retention would certainly be a dangerous 
 act in States where the continued possession cannot be 
 explained. It may be observed that the fact that a party 
 testified in a general way that he took possesion, or was 
 in possession, will have no weight when the evidence 
 shows precisely what was done. 1 Where the purchaser 
 replenished the stock and waited upon the customers, 
 this was considered a change of possession ; 2 and a wife- 
 may hold a valid possession against her husband without 
 separating from him. 3 
 
 It is obvious from a casual consideration of these 
 cases that a change of possession which will protect the 
 title of the purchaser, as against creditors, must consist 
 of a complete surrender and discontinuance of the exer- 
 cise of acts of ownership by the vendor and the assump- 
 tion of such acts on the part of the vendee. 
 
 § 254. Question for the jury. —The doctrine of Massachu- 
 setts, 4 followed by many of the States, makes continued 
 possession, as evidence of fraud, a question for the jury. 5 
 It is a question of intent to be settled by them as a ques- 
 tion of fact, even though the evidence of good faith and 
 absence of intent to defraud may be uncontradicted.' 
 If the jury err, justice may be obtained by setting the 
 
 fellow, 100 Ala. 416,4:22, 14 So. Rep. Griswold v. Sheldon, 4 X. V. 581 ; 
 
 283; Preston v. South wick, 115 N. Y. Davis v. Turner, 4 Gratt. (Va.) 422; 
 
 150, 21 N. E. Rep. 1031. Cutter v. Copeland. 18 Me. 127 ; Til 
 
 1 Steele v. Benham, 84 N. Y. 640; son v. Terwilliger, 56 N. Y. 273 . Smith 
 Miller v. Long Island R. R. Co., 71 v. Welch, 10 Wis. 91 ; Allen v. Cow. 11. 
 N. Y. 380. Compare Stanley v. Na- 23 N. Y. 507 ; Hollacher v. O'Brien, 5 
 tional Union Bk., 115 N. Y. 122. 22 N. Hun (N. Y.) 277 : Warner v. Norton, 
 E. Rep. 29. 20 How. 460; Scott v. Winship, 20 
 
 2 Butler v.Howell, 15 Col. 249,25 Ga. 430; Chamberlain v. Stern, 11 
 Pac. Rep. 313. Nev. 268; Goddard v. Weil, 165 Pa. 
 
 -Stanley v. National Union Bk.. St. 419, 30 Atl. Rep. 1000 
 
 115 N. Y. 122, 22 N. E. Rep. 29. "Miller ads. Pancoast, 29 N. J. Law 
 
 4 Ingalls v. Herrick, 108 Mass. 351. 254; Renninger v. Spat/., 128 Pa. St. 
 
 5 See Mead v. Noyes, 44 Conn. 487 ; 524, 18 Atl. Rep. 405. 
 Thompson v. Blanchard, 4 N. Y. 303 ; " Blaut v. Gabler, 77 X. Y. 461.
 
 460 OVERCOMING PRESUMPTION — POSSESSION. ,^255.256 
 
 verdict aside, 1 but otherwise the court is not entitled to 
 interfere with the prerogative of the jury. 
 
 §255. Overcoming the presumption. —The presumption 
 of fraud which the statute raises from the fact that there 
 was no actual change of possession of the chattels sold, 
 practically becomes conclusive if not rebutted or over- 
 come by competent proof in explanation." There is 
 nothing left for the jury to pass upon or to consider. On 
 the other hand, where the evidence repels the statutory 
 presumption, the trial court is justified in refusing to sub- 
 mit the question of fraud to the jury. 3 
 
 It was observed in the Supreme Court of Kansas, 4 
 that the law did not imply that one purchasing property 
 without taking actual possession, if there were creditors 
 of the vendor, was presumptively engaged in a fraudulent 
 transaction, and that his conduct was to be scrutinized 
 accordingly, but simply that one claiming under such a 
 purchase takes nothing until he shows good faith and 
 consideration. 
 
 £ 256. Possession within a reasonable time. — It is fre- 
 quently said that the vendee must acquire possession of 
 the subject-matter of the sale within a reasonable time. 
 According to some of the cases, a " reasonable time" 
 must be construed not with reference to the mere con- 
 venience of the party, but only with reference to the time 
 fairly required to perform the act of taking possession, or 
 doing what is its equivalent. 5 The cases where it is held 
 that immediate delivery is not practicable are usually 
 
 Bollacher \. O'Brien, 5 Hun (N. -Prentiss Tool & Supply Co. v. 
 
 577 ; Potter v. Payne, -21 Conn. Schirmer, 136 N. Y. 305, 32 N. E. 
 
 Rep. 849. See Bulger v. Rosa. 119 
 
 Mayer v. Webster, 18 Wis. 396; N. Y. 459. 24 N. E. Rep. 853. 
 
 Cheatham \ Hawkins, 76 N. C. 338, 4 Kansas Pacific Ry. Co. v. Couse, 
 
 and cases cited ; State v. Rosenf eld, 17 Kan. 571-575. 
 
 :'-"> Mo. 172 See Grant v. Lewis, 14 See Seymour v. O'Keefe, 44 Conn. 
 
 Wis. 187 132; Meade v. Smith. 16Conn. 346.
 
 § 257 POSSESSION. 46] 
 
 illustrated in the books by the case of a sale of a ship at 
 sea where immediate delivery is a physical impossibility ; 
 and the same principle has been applied to a case where 
 the situation of the parties at the time of the sale was so 
 remote from the place where the property was situated, 
 that immediate manual delivery was impossible. What 
 is a reasonable time must be determined by the circum- 
 stances of each case ; 1 no definite rule can be laid down. 2 
 In Mcintosh v. Smiley' 5 it was held that even if the taking 
 of possession was not within a reasonable time, the sale 
 would be sustained, if possession was taken and contin- 
 uously retained before the bringing of a suit by an existing 
 creditor. 
 
 § 257. Change of possession must be continuous. — In a 
 controversy which arose in New York, it appeared that 
 the sale was accompanied by an immediate delivery of 
 the property to the vendee, and an actual change of pos- 
 session, and that, after considerable time had passed, the 
 property came again into the possession of the vendor. 
 It was decided that the law would not measure the lapse 
 of time from the sale and delivery to the renewed posses- 
 sion by the vendor directly from his vendee, and say that 
 a change of possession continued for a longer period 
 would satisfy the statute, but for a shorter period would 
 not have that effect. The statute was said to be impera- 
 tive that the sale must be followed by a continued change 
 of possession or the fraudulent presumption would 
 obtain. 4 If, however, the vendor takes possession openly 
 
 1 State v. King, 44 Mo. 238 37; Young v. McClure, 2 W. <& S. 
 
 2 Bishop v. O'Connell, 56 Mo. 158. (Pa.) 147: Bacon v. Scannell, 9 Cal. 
 '107 Mo. 377. 17 S. W. Kep. 979. 271 ; Miller v. Garman, 69 Pa. St. 134; 
 
 Sec also Markev v. Umstattd, 53 Mo. Norton v. Doolittle, :52 Conn. 405; 
 
 Api>. 20. Clark v. Lee, 7s Mich. 221, 231, ll N. 
 
 4 See Tilson v. Terwilliger, 56 N. Y. W. Rep. 260; Eopkins v. Bishop, 91 
 
 27:); Garman v. Cooper, 72 Pa. St. Mich. 328, 51 N. \Y. Rep. 902.
 
 462 RESUMPTION 01 POSSESSION. §258 
 
 as agent of the vendee, this fact does not raise a pre- 
 sumption of fraud. 1 
 
 £ 258. Temporary resumption of possession. — Where it 
 appears that the property passed into the hands of the 
 vendor for a mere temporary purpose, and under circum- 
 stances which showed that the return of the property was 
 not effected with a view of enabling the vendor to use it 
 as his own while the legal title was in another, the cred- 
 itors of the vendor will not be authorized to attack the 
 sale as fraudulent and void. This was held where the 
 subject-matter of the sale was a cutter which the vendee 
 occasionally allowed the vendor to use. 2 Where after 
 delivery the vendor takes forcible possession, his so doing 
 does not render the property liable to seizure by his cred- 
 itors. 3 Questions of this class often depend for their 
 solution upon the locus of the action ; whether it be in a 
 State where the presumption can be rebutted or one 
 where it is conclusive. By way of contrast with Knight 
 v. Forward, is Webster v. Peck, 4 where it appeared that 
 a vendor, who had sold a horse, within a week after the 
 sale hired him of the vendee, and was using him to all 
 appearances as his own, in the same manner as before the 
 sale. This was considered to be a restoration of the pos- 
 session, 5 and the vendee lost his horse to an attaching 
 creditor of the vendor. 6 
 
 Stanley v. Nat. Union Bank. L15 i Knight v. Forward, <;:; Hail.. (N. 
 
 N. Y. 122,22 N. K. Rep. 29; Hopkins Y.) 311. 
 
 \ Bishop. 91 Mich. 328,51 N. W. Rep. Posl v. Berwind-White Coal Min- 
 
 Reed v Minor, :: Cranch C. < '. ingCo., 176 Pa. St. 297, 35 Atl. Rep. 
 
 I ■ -l Cas. 446; Bell v. Mc- 111. 
 
 Closkey, L55 Pa. St. 319, 26 Atl Rep. 4 «1 Conn. 495. 
 
 547 . State ex rel. Smith v. Flynn, 56 Sec Davis v. Bigler, 62 Pa. St. 248 : 
 
 Wo Ipp. 236; Crawford v. Neal, I II Barr v. Reitz, 53 Pa. St. 256. 
 
 1. 9 585, 12 s C. Rep 759; cf. 5 Compare Bond v. Bronson, 80 Pa. 
 
 Thornton v. Cook, 97 Ala 630, 12 So. St. 360; Johnson v. Willey, 46 N. II. 
 
 R< p W8. 75 ; Lewis v. Wilcox, G Nev. 215.
 
 §§259,260 POSSESSION OF BAILEE. 463 
 
 55259. Concurrent possession insufficient. — The authori- 
 ties seem to be almost unanimous in holding that concur- 
 rent possession by the vendor and vendee will not satisfy 
 the rule or the statute requiring a change of possession. 1 
 "There cannot, in such case," said Duncan, J., "be a 
 concurrent possession ; it must be exclusive, or it would, 
 by the policy of the law, be deemed colorable." 3 Again, 
 it is said to be " mere mockery to put in another person 
 to keep possession jointly with the former owner." 3 In 
 Wordall v. Smith, 4 Lord Ellenborough observed : " To 
 defeat the execution by a bill of sale, there must appear 
 to have been a bona fide, substantial change of posses- 
 sion A concurrent possession with the assignor 
 
 is colorable. There must be an exclusive possession 
 under the assignment, or it is fraudulent and void as 
 against creditors." 5 So it is no change of possession to 
 leave the property in charge of the vendor's agent. (i 
 
 §260 Possession of bailee- —The sale of personal prop- 
 erty in the hands of a bailee is good against an execution 
 creditor, though there be no actual delivery, provided the 
 vendor do not retake the possession. 7 In Dempsey v. 
 Gardner, s Chief-Justice Gray said : " Where property 
 sold is at the time in the custody of a third person, notice 
 
 1 Sumner v. Dalton, 58 N. H. 296 ; But compare Allen v. Cowan, 23 N. 
 Lang v. Stockwell, 55 N. H. 561; Y. 502 ; State ex rel. Smith v. Mynn, 
 Steelwagon v. Jeffries, 44 Pa. St. 407. 56 Mo. App. 236. 
 
 < iompare Townsend v. Little, 109 U. " Linton v. But/, 7 Pa. St. 89 ; Wor- 
 
 S. 504, 3 S. C. Rep. 357. man v. Kramer, 7:! Pa. St. 385 ; I tood- 
 
 2 Clow v. Woods, 5 S. & R. (Pa.) win v. Kelly, 42 Barb. (N. Y.) 194. 
 287. SeeMcKibbin v. Martin, 64 Pa. 8 127 Mass. 381, 383. The bailee in 
 St. 359, per Sharswood, J. ; Regli v. such case must either relinquish to 
 McClure, 47 Cal. 612: Brawn v. Kel- the purchaser or consent to hold as 
 ler. 43 Pa. St. 106. his bailee. Campbell v. Hamilton, 63 
 
 8 Babb v. Clemson, 10 S. & R. (Pa.) Iowa 293, 19 N. W. Rep. 220; Bil- 
 
 428. See Worman v. Kramer, 73 Pa. dreth v. Fitts, 53 Vt. 684; Morrison 
 
 St. :57S. v. Oium, 3 X. Dak. 76, 51 N. \V. Rep 
 
 4 1 Campb. 332. 288; Buhl Iron Works v. Teuton, 67 
 
 5 See Trask v. Bowers, 4 N. H. 31 1. Mich. 623, 35 N. W. Rep. 804. 
 
 6 Brunswick v. McClay, 7 Neb. 137.
 
 464 N< ' DELIVERY. § 261 
 
 to him of the sale is sufficient to constitute a delivery as 
 against subsequent attaching creditors." ' The reason of 
 the rule calling for change of possession is entirely satis- 
 fied in such cases. ~ 
 
 S 261. No delivery where purchaser has possession. — 
 Where at the time of the sale the property is in the pos- 
 session and subject to the control of the vendee, the law 
 does not require an act of delivery. The sale is complete 
 without it. 3 In Warden v. Marshall, 4 Hoar, J., said : 
 '' The oil being already in the plaintiff's possession in the 
 bonded warehouse, no other delivery was necessary to 
 complete the sale." In Lake v. Morris, 5 Hinman, C. J., 
 observed: "At the time of the purchase the plaintiff 
 was keeping the horses for his nephew, and the defendant 
 claims that, because there was no formal delivery of the 
 possession of them by the vendor to the purchaser, the 
 sale was in point of law fraudulent and void against cred- 
 itors. Of course no such delivery could have taken place 
 without first taking the horses from the plaintiff's posses- 
 sion for the mere purpose of redelivering them to him 
 again. But a merely formal act like this we presume 
 would never occur between parties whose only object was 
 to place the purchased property in the hands of the pur- 
 chaser for his use." But where a principal transferred his 
 property to his agent who resided at the store and did 
 business in the name of the principal, it was held that 
 unless the agent made known to the public that he held 
 
 1 Citing Tuxworth v. Moore, 9 Pick. Burlburd v. Bogardus, 10 Gal. 519 ; 
 Mass.) 347; Carter v. Willard, 19 Doak v. Brubaker, 1 Nev. 218; Flan- 
 Pick. (Mara.) 1 ; Russell v. O'Brien, agan v. Wood, 33 Vt. 338. See Ches- 
 127 Mara; 349 See Hildreth v. I'itts. ter v. Bower, 55 Cal. 46. 
 53 Vt. 684 ; Doak v. Brubaker, 1 Nev. ' Martin v. Adams. 104 Mass. 262; 
 218 ; How v. Taylor, 52 Mo. 592 ; Ken- Warden v. .Marshall. 99 Mass. 305 ; 
 • 1 . 1 1 : \. Fitts, 22 N. 111. Nichols \. Patten, 18 Me. 231 ; Lake 
 
 • The rule i^ otherwise as l" a mere v. Morris, 30 < !onn. 204. 
 
 servant ; the possession "l a servant ' 99 .Mass. 306. 
 
 i- 1 In' possession "I' his employer. ' 30 Conn. 204.
 
 §262 TECHNICAL DELIVERY NOT ESSENTIAL. 465 
 
 as principal and no longer as agent, the sale would be 
 treated as fraudulent. 1 
 
 §262. When technical delivery is not essential. — In some 
 instances the necessities of the case render a technical 
 delivery of the property impossible; 2 in such cases the 
 usual penalties will not be visited upon the purchaser. 
 Thus a sale of cattle roaming over uninclosed plains with 
 those of other owners, if bona fide, will not be invalid as 
 against creditors of the vendor, merely for want of deliv- 
 ery, until the purchaser has had a reasonable time to sep- 
 arate and brand the cattle ; and the branding of the cattle 
 by the purchaser will constitute a good delivery, although 
 the cattle are afterward allowed to remain in the same 
 uninclosed range of pasture. 3 It is not essential that a 
 transfer of stock should be made on the books of a cor- 
 poration, to be valid against attaching creditors, when not 
 called for by some positive provision of the charter. 4 
 
 A symbolical delivery of a large quantity of logs, 
 landed upon a stream preparatory to driving, has been 
 considered sufficient. 5 The law accommodates itself to 
 the necessities of the business and the nature of the 
 property, making a symbolical delivery sufficient where 
 nothing but a constructive possession can ordinarily be 
 had. 6 Where actual delivery is not possible by reason of 
 bulkiness the property should be promptly placed within 
 
 1 Comly v. Fisher' Taney's Dec. 57 Me. 9. The same rule applies to 
 121, 6 Fed. Cas. 207. bricks. Hawkins v. Kansas City Hy- 
 
 2 Goddard v. Weil. 165 Pa. St. 419. draulic Press Brick Co., 63 Mo. App. 
 30 Atl. Rep. 1000 ; Lathrop v. Clay- 64. 
 
 ton, 45 Minn. 124, 47 N. W. Rep. 544. 6 Compare Terry v. Wheeler, 25 N. 
 
 3 Walden v. Murdock, 23 Cal. 540. Y. 520; Boynton v. Veazie, 24 Me. 
 Contra, Sutton v. Ballou, 46 Iowa 286: Doak v. Brubaker, 1 Nev. 218; 
 517. Long v. Knapp, 54 Pa. St. 514 ; Allen 
 
 4 Boston Music Hall Assoc, v. Cory, v. Smith. 10 .Muss. 308; Tognini v. 
 129 Mass. 435. See Beckwith v. Bur- Kyle, 17 Nev. 215,30 Pac. Rep. 819. 
 rough, 13 R. I. 294, and cases. But compare Wilson v. Hill, 17 Nev. 
 
 5 Bethel Steam Mill Co. v. Brown, 401, 30 Pac. Rep. 1070. 
 
 30
 
 ^66 EX< USING WANT OF CHANGE OF POSSESSION. ^263 
 
 the exclusive power and control of the purchaser. 1 " It 
 often happens," says Sharswood, J., "that the subject of 
 the sale is not reasonably capable of an actual delivery, 
 and then a constructive delivery will be sufficient. As in 
 the case of a vessel at sea. of goods in a warehouse, of a 
 kiln of bricks, of a pile of squared timbers in the woods, 
 of goods in the possession of a factor or bailee, of a raft 
 of lumber, of articles in the process of manufacture, 
 where it would be not indeed impossible, but injurious 
 and unusual to remove the property from where it happens 
 to be at the time of the transfer. 1 ' a 
 
 £ 263. Excusing want of change of possession. — I he con- 
 tention was urged by counsel, in Mitchell v. West, 8 that 
 in addition to proof that the sale of the chattels was bona 
 fide, and that there was no intent to defraud the creditors 
 of the vendor, it was necessary to show some valid 
 excuse or reason for leaving the property in the posses- 
 sion of the vendor, or stated in another form, that the 
 absence of intent to defraud creditors could not be estab- 
 lished without showing a good reason for the want of 
 change of possession. The court, upon the authority of 
 Hanford v. Artcher, 4 held that this was not the case. 
 The very purpose of the law in presuming fraud from a 
 failure to deliver possession was to suppress sales made 
 in bad faith and without consideration. Manifestly this 
 presumption ought to disappear where both good faith 
 
 Bfiller v. Lacey, 7 Houst. (Del.) 8, Mass. 308; Conway v. Edwards, 6 
 
 BO Atl. Rep. 640. N.-v. 190 ; Walden v. Murdock, 33 
 
 McKibbin v. Martin, tit Pa. St. Cal. 540; Cartwrighl v. Phoenix, 7 
 
 Citing Clow v. Woods, 5 S. A Cal. 281 ; Woods v. Bugbey, 29 Cal. 
 
 R. (Pa.) 275 ; Cadbury v. Nolen, 5 Pa. 472 ; Lathrop v. Clayton, 45 Minn. 
 
 ;.'u. Linton v. Hut/.. 7 Pa. St. 89 : 124, 17 X. W. Rep. 544 ; Garretson v. 
 
 Eaynesv. Hunaicker. 26 Pa. St. 58 ; Backenberg, 144 Pa. St. 107, 22 Atl. 
 
 Chase v Ralston, :;<> Pa. St. 589; Barr Rep. 875 ; Bell v. McCloskey, 155 Pa. 
 
 \ Reitz,58 Pa St. 256 . Benford v. St. 319, 26 Atl. Rep. 547. 
 
 Schell, 55 Pa Si 898. See ah.. Fitch 55 \. Y. 107. 
 
 v. Burk, 88 VI ••.-::: Hutching v. Gil- l 4 Hill (N. Y.) 271. 
 christ, '- , : > . Vi. 82 . Ulen v. Smith, i<»
 
 § 264 POSSESSION 1 U RE X I IN. 467 
 
 and consideration are proved to exist. Clute v. Fitch ' 
 is an illustration of a sufficient excuse for failing to 
 change possession. A sleigh was sold in July, and owing 
 to the difficulty of removing it at that season of the year, 
 was stored, by agreement, in the vendor's barn until the 
 ensuing winter. This was considered a satisfactory 
 explanation of the failure to change possession. It may 
 be here noted that a vendee may continue at the old 
 stand the business which he has purchased of the 
 vendor. 2 
 
 § 264. Change of possession of realty. — There seems to 
 be a distinction recognized in the law as to the effect of 
 a failure to change possession of realty as distinguished 
 from the rule applicable to personalty. In Phettiplace v. 
 Sayles, 3 a leading and highly important case, Story, J., 
 said: "Another circumstance, relied on to invalidate the 
 good faith of this conveyance, is, that no change of 
 possession took place, but the grantor continued in 
 possession notwithstanding the sale, and occupied the 
 farm as he had been accustomed to do. This circumstance 
 is not without weight, and, in a doubtful case, would 
 incline the court not to yield any just suspicions arising 
 from other causes. But possession, after a sale of real 
 estate, does VioX. per se raise a presumption of fraud, as it 
 does in the case of personal estate. In the latter case, 
 possession is prima facie evidence of ownership, and 
 where a party, who is owner, sells personal property 
 absolutely, and yet continues to retain the visible and 
 exclusive possession, the law deems such conduct a con- 
 structive fraud upon the public, and the sale as to cred- 
 itors wholly inoperative, whether it be for a valuable 
 consideration or not. This doctrine has its foundation in 
 a great public policy, to protect creditors against secret 
 
 1 2o Barb. (N. Y.) 428. ; 4 Mason, 321. 
 
 3 Ford v. Chambers, 28 Cal. 13.
 
 ji.S POSSESSION OF REALTY. §264 
 
 collusive transfers. The same rule does not apply to real 
 estates. Possession is not here deemed evidence of 
 ownership The public look not so much to posses- 
 sion as to the public records as proofs of the title to such 
 property. The possession, therefore, must be inconsistent 
 with the sale, and repugnant to it in terms or operation, 
 before it raises a just presumption of fraud." ' The rule 
 seems to be established in New York to the effect that 
 the continuance in possession of the grantor is merely a 
 circumstance proper to be considered in connection with 
 other evidence tending to establish a design to defraud 
 creditors, but it did not of itself warrant a finding as a 
 legal conclusion that the deed was fraudulent, 2 and no 
 presumption of fraud is raised by such continuance in 
 possession and receipt of profits where these acts are in 
 accordance with the terms of the deed. 8 
 
 The reader must not be misled by the observation of 
 Judge Story, that " possession is not here deemed evidence 
 of ownership." The word " here" is significant in this 
 connection. The rule enunciated by the learned court is 
 partially founded on the disinclination of the law to 
 presume fraud and is limited in its application. Pos- 
 iion, on the other hand, ordinarily raises a presump- 
 tion of ownership by the occupant of real property. True 
 
 See Every v. Edgerton, 7 Wend, where a chattel is sold, because the 
 
 (N. Y. 260; Bant <>r the U. S. v. title to the former is evinced by 
 
 Housman, 6 Paige (N. Y.) 526 ; Fuller possession, not of the thine;, but of 
 
 v. Brewster, 53 Md. 363; (Mark v. the title deeds, which, like manual 
 
 Krause, 2 Mackey d> C.) Mo occupation in the case of a chattel, is 
 
 I'lnte v. Newkirk, 16 N. Y. 684. the criterion." SeeTibbakn Jacobs, 
 
 Compare Steward v. Thomas, :;.-, \|,,. :;i Conn. 431 ; Merrill v. Locke, 41 N. 
 
 a v. Burgett, :;:; Ark. B. 489 ; Ludwig v. Highley, 5 Pa. St. 
 
 Tompkins v. Nichols, r,:; Ala. 183; Allentown Bank v. Beck. 49 Pa. 
 
 197; Collins x. Taggart, 57 Ga. 355. St. 394; Paulling v. Sturgus, 3 Stew. 
 
 ^verj x. Street, 6 Watts (P a .) (Ala.) 95 ; Suiter v. Turner, 10 Iowa 
 
 849. Chief -Justice Gibson said : "It is 517, 
 
 well established thai where land is Alexander \. Todd, I Bond 175, 
 
 conveyed want of correspondent pos I Fed. < 'as. :;s:; : Hildreth v. Sands, 
 
 of fraud than 2 Johns. Ch. (X. V.) 46.
 
 § 265 CHANGE ON JUDIC1 \l. SALE. 
 
 it is the lowest degree of title, but nevertheless it is evi 
 dence of ownership; 1 descends to heirs ; 2 is subjeel to 
 taxation; 3 may be sold at sheriff's sale; 1 and is suffi- 
 cient proof of title to support ejectment against tres- 
 passers. 5 In these cases the presumption of ownership 
 arising from possession is indulged because it does not 
 conflict with an honest and lawful intention, and does not 
 lead to a conclusion bearing the stigma of fraud. 
 
 §265. Change of possession on judicial sale. — The rule is 
 promulgated in Pennsylvania that a change of possession 
 is not necessary to give validity to a judicial sale." Chief 
 Justice Sharswood said, in Smith v Crisman : 7 "Nothing 
 is better settled in this State than that the purchaser of 
 personal property at sheriff's or constable's sale may leave 
 it in the possession of the defendant, as whose property 
 it was sold, under any lawful contract of bailment." The 
 retention of possession in such a case is not a badge of 
 fraud, because the sale is not the act of the party retain- 
 ing the property, but is the act of the law, and being a 
 judicial sale, conducted by a sworn officer of the law, is 
 deemed to be fair and honest until proved otherwis 
 
 The rule is quite universal in its application that where 
 a stranger purchases and pays for property on execution 
 sale, his failure to remove it from the possession of the 
 defendant in execution does not render the sale fraudulent 
 per se or presumptively fraudulent. 9 Under the statute 
 
 1 Rawley v. Brown, 71 N. Y. 85. Scott, II Bow.282. See Burl \. Pan- 
 
 See Ludlow v. McBride, 3 Ohio, 241 ; jaud, 99 U. 8. 180 ; Sedgwick & Wait 
 
 Phelan v. Kelly, 25 Wend. (N. Y.) on Trial of Title to Land, Chap. 
 
 389 ; Teabout v. Daniels, 38 Iowa 158; XX VII. 
 
 Gillett v. Gaffney, 3 Col. 351. G Bisbing v. Third Nat. Hank.'.):: 
 
 J Mooney v. Olsen, 21 Kan. G91- Pa. St. 79 ; Maynes v. Atwater, 88 Pa 
 
 697. St. 496. 
 
 3 Black well on Tax Title?, pp. 5, 6. ' 9J Pa. St. 430. 
 
 4 Yates v, Yates, 76 N. C. 142. 'Craig's A.ppeal, 77 Pa. St. 156; 
 6 Jones v. Easley, 53 Ga. 454 ; Bates Myers v. Harvey, 2 I'. & W. Pa 
 
 v. Campbell, 25 Wis. 614 ; Doe v. ' Abney v. Kingsland, 10 Ala 
 
 West, 1 Blackf. (Ind.) 135 : Christy v. Latimer v. Batson, 7 DowL & R. 106
 
 47<D DELIVERY OF GROWING CROPS. §266 
 
 in New York, 1 however, as interpreted by the courts, 2 the 
 execution sale will be presumptively fraudulent unless 
 accompanied by immediate delivery, and followed by an 
 actual and continued change of possession, whether the 
 plaintiff in execution or a third person be the purchaser. 
 The reason of the rule and the evil at which it is aimed is 
 said to justify these decisions. Finch, J., observed : "As 
 an honest purchaser buys because he wants the property 
 and its possession, and, therefore, naturally and usually 
 takes it, the absence of this fact indicates some purpose 
 different from that of an honest purchaser, and requires 
 proof of good faith and honest intention. These consid- 
 erations apply equally to cases where the transfer of 
 title from the vendor is through the agency of a judg- 
 ment and execution followed by a sheriff's sale." 3 
 
 £266. Delivery of growing crops. — Where the property 
 which is the subject-matter of sale is a growing crop, 
 there is much dissension in the cases as to delivery of 
 possession. It is said in Illinois that in the case of stand- 
 ing crops the possession is in the vendee until it is time 
 to harvest them, and until then he is not required to take 
 manual possession of them. 4 Chief-Justice Cockburn, in 
 speaking upon this subject, said: " It is impossible that 
 there can be present delivery of growing crops. A grow- 
 ing crop is valueless, except so far as by its continuing 
 growth it may hereafter benefit the purchaser, and it is 
 
 Anderson v. Brooks, 11 Ala. 953; Gardenier v. Tubus, 21 Wend. (N. Y.) 
 
 Walter v. Gernant, 1:: Pa. St. 515 ; 109. 
 
 Dick v. Lindsay, 3 Grant (Pa.) 431 ; ' Stimson v. Wrigley, 86 N. Y. 336. 
 
 Poole v. Mitchell, 1 Hill's (S. C.)Law See Wallace v. Nodine, 57 Hun (N. 
 
 404;Guignard v. Aldrich, 10 Rich. Y.)245, 10 N. Y. Supp. 919. 
 
 Eq. s. C.) 853. See Hanford v. * Ticknor v. McClelland, 84 111. 471. 
 
 Obrecht, 49 111. lit; Compare O'Brien See Bull v. Griswold, 19 111. 631; 
 
 v Chamberlain, 50 Cal. 285. Thompson v. Wilbite, 81 111. 356; 
 
 ; 3 N. Y. I:, s. 222, .>:.-,, 6. Bellows v. Wells, 36 Vt. 600. Coni- 
 
 Stimson v. Wrigley, 86 X. Y. 336 ; pare Quiriaque v. Dennis, 24Cal. 154. 
 
 Fonda v. Gross, ISWend. (N. Y.) 628; Sec State v. Casteel, 51 Mo. App. 148; 
 
 State v. Durant, 53 Mo. Apj). 493.
 
 £267 POSSESSION Willi POWER OF SALE. I71 
 
 only when it reaches maturity that it can be removed, nor 
 
 is it intended that it shall be removed till it is ripe 
 
 In a popular and practical sense, growing crops are no 
 more capable of removal than the land itself." ' Kent 
 said : " I do not know that corn, growing, is susceptible 
 of delivery in any other way than by putting the donee 
 into possession of the soil." Yet authority can be cited 
 to the effect that the vendee does not acquire good title 
 in such cases. 2 
 
 § 267. Possession with power of sale.— The effect of leav- 
 ing a mortgagor in possession of the mortgaged goods, 
 with power to sell the property and substitute by purchase 
 other property in its stead, has created much dissension 
 in the courts, and engendered a vast amount of litigation. 
 The question came up before the United States Supreme 
 Court in Robinson v. Elliott, 3 a case which we shall pres- 
 ently consider at length. 4 The mortgagors were author- 
 ized by the express terms of the mortgage to continue in 
 possession of the mortgaged wares and merchandise, sell 
 the same, supply their places with other goods by pur- 
 chase, the lien of the mortgage to extend to the replen- 
 ished stock. The mortgage was adjudged absolutely void. 
 It was said that whatever might have been the motive 
 which actuated the parties to the mortgage, it was mani- 
 fest that the necessary result of what they did was to 
 allow the mortgagors, under cover of the mortgage, to 
 sell the goods as their own, and appropriate the proceeds 
 to their own purposes, and this, too, for an indefinite 
 length of time. A mortgage which in its very terms con- 
 templates such results, besides being no security to the 
 
 1 Brantoru v. Griffits, L. R. 2 C. P. Stone v. Peacock, 35 Me. 385 See 
 D. 212. Raventas v. Green, 57 < !al. 255. 
 
 2 Smith v. Champney, 50 Iowa 174 ; 3 22 Wall. 513. 
 
 Lanison v. Patch, 5 Allen (Mass.) 586; 4 See infra. Chap. XXII.. on Fraud 
 
 ulent Chattel Mortgages.
 
 47- POSSESSION WITH POWER OF SALE. §267 
 
 mortgagees, operates in the most effectual manner to ward 
 off other creditors ; and where the instrument on its face 
 shows that the legal effect of it is to delay creditors, the 
 law imputes to it a fraudulent intent. 1 
 
 1 See Egdell v. Hart, 9 N. Y. 213. these shifting liens. See Etlieridge 
 There is much confusion in the an- v. Sperry, 139 U. S. 266, 11 S. C. Rep. 
 thorities concerning the validity of 565.
 
 CHAPTER XVIII. 
 
 EVIDENCE. 
 
 £ 268. Concerning evidence. 
 
 269. Competency of party as wit- 
 
 ness. 
 
 270. Proof and conclusiveness of 
 
 judgments. 
 
 271. Burden of proof. 
 271a. Books of account. 
 
 272. Secret trust. 
 
 273. Proof of insolvency of debtor. 
 
 274. Insolvency of vendee. 
 
 275. General reputation. 
 
 276. Concerning res gestae,. 
 
 277. Declarations before sale — 
 
 Realty and personalty. 
 
 § 278. Declarations of debtor after 
 sale. 
 
 279. Possession after conveyance. 
 219a. Professions of good faith. 
 279l>. Intention — Knowledge. 
 279c. Consideration. 
 
 280. Declarations of co-conspirators. 
 
 281. Proof of circumstances. 
 
 282. Other frauds. 
 
 283. Suspicions insufficient. 
 
 284. Proving value 
 284a. Recitals in deed. 
 
 285. Testimony must conform to 
 
 pleadings. 
 
 "Where fraud appears courts will drive through all matters of form." — Buck v. Ver 
 Ind. 117. 
 
 § 268. Concerning evidence. — Manifestly general princi- 
 ples and rules of evidence cannot receive extended con- 
 sideration in a special treatise relating to fraudulent 
 alienations and creditors' bills. The sufficiency of the 
 proofs requisite to uphold or defeat a creditor's proceeding 
 to discover equitable assets or annul fraudulent transfers 
 must, however, necessarily receive passing attention in its 
 prominent and peculiar phases. The character of the 
 evidence germane to the subjects of consideration, 1 
 notice, 2 intention, 3 badges of fraud, 4 creditors' liens, 5 and 
 change of possession, (i has been regarded as of sufficient 
 importance to call for incidental treatment in separate 
 chapters devoted to those topics, and will not be here 
 discussed anew. Voluntary and fraudulent conveyances, 
 
 1 See Chap. XV. 
 
 2 See Chap. XXIV. 
 
 3 See Chap. XIV. 
 
 4 See Chap. XVT 
 
 5 See Chap. IV. 
 
 6 See Chap. XVII.
 
 474 COMPETENCY AS WITNESS. §269 
 
 as elsewhere shown, 1 are regarded as valid and operative 
 between the parties. Only a creditor 2 or a purchaser 
 from the donor or grantor can assail them, or inquire into 
 the consideration, or the intent inspiring their execution. 
 If the relationship of debtor and creditor is not admitted, 
 the burden of proving it rests upon the creditor; the 
 primary question in such cases is the existence of this 
 relationship, 3 for if it is not established, then the com- 
 plainant stands in the attitude of an intermeddler, raising 
 a clamor which a court of equity would be illy employed 
 in silencing. 4 The evidence in these actions takes a wide 
 range. 5 The debtor's acts, statements, correspondence, 
 the character of his business, and his debts, may be 
 investigated. 6 And contracts are to be interpreted 
 according to the law of the State where made — the lex 
 loci — unless it is plain the laws of some other State were 
 in view. 7 
 
 £ 269. Competency of party as witness.— Not only is it 
 permissible for the defendant to testify as a witness in an 
 equity cause, 8 but he may be compelled, under the mod- 
 ern procedure, to give evidence upon the demand of the 
 complainant. 9 The rule of the common law that no 
 party to the record could be called as a witness for or 
 against himself, or for or against any other party to the 
 
 1 !hap. WW I 468, 32 N. E. Hep. 666; Ferbrache v. 
 
 Sawyer \. Harrison, 43 Minn. 297, Martin (Idaho, L893), 32 Pac. Rep. 252; 
 
 46 N. W. Rep. 434. Silvis v. Oltmann, 53 III. A.pp. 392. 
 
 Cook \. Eopper, 23 Midi. 517, per 6 Brittain v. Crowther, 54 Fed. Rep. 
 
 Cooley, .1. See Stanbro v. Hopkins. 295 ; Jenne v. Joslyn, 41 V). 478. 
 
 88 Barb. (N. F.) 271; Edmunds v. ' Chillingworth v. Eastern Tinware 
 
 Mister, 58 Miss 765; Donley v. Mc- Co., 66 Conn. 318,33 Atl. Rep. 1009. 
 
 Kiernan, 62 Ala. 34. Where fraud is allege. I as the basis 
 
 4 Means v. Sicks, 65 Ala. 24:!. of an action, it must he proved. 
 
 Nicolay v. Mallery, 62 Minn. 119, Truesdell v. Bourke, 145 N. V. 612, 
 
 64 N W. Rep. 108; Trumbull v. Bewitt, 40 N. E. Rep. 83. 
 
 an. 67, 81 Ail. Rep. 492; Miller » Clark v. Krause, 2 Mackey(D.C) 
 
 Eanley, 94 Mich. 258, 58 N. W. 571. 
 
 Rep 962 . O'Donnell v. Hall, 157 Mass. 'Texas v. Chiles, 21 Wall. 488.
 
 § 270 PROOF OF fUDGMENTS. 475 
 
 suit, 1 has been almost wholly abrogated. 8 Mr. Justice 
 Swayne said in Texas v. Chiles: 3 "The innovation it is 
 believed, has been adopted in some form in most if not 
 in all the States and Territories of our Union. 4 It is 
 eminently remedial, and the language in which it is 
 couched should be construed accordingly." Objections 
 to the admissibility of testimony must be specified. 5 
 
 § 270. Proof and conclusiveness of judgments. — We have 
 already discussed the principle underlying the rule which 
 requires a judgment as the foundation of a creditor's pro- 
 ceeding to annul fraudulent alienations or discover equi- 
 table assets ; 6 and the sufficiency or insufficiency of par- 
 ticular judgments to satisfy this exaction. 7 A judgment, 
 unless rendered without jurisdiction, is not open to col- 
 lateral attack. 8 It follows from what has been already 
 said, and indeed has been expressly decided, that a vol- 
 untary conveyance will be upheld as regards a judgment 
 rendered against the debtor upon a fictitious debt.' -1 It 
 may be observed that where no evidence is offered to 
 impeach the judgments, and it appears that they were 
 regularly rendered by courts having jurisdiction, and were 
 conclusive as between the parties, such judgments are 
 competent evidence tending to prove the debt, even as to 
 third parties, until something is shown to the contrary by 
 
 1 1 Greenleafs Ev. §§ 329. 330. 8 Dreyfuss v. Seale, 18 Misc. (N. Y.) 
 
 s See Texas v. Chiles, 21 Wall. 488 ; 551, 41 N. Y. Supp. 875: Cooper v. 
 
 Clark v. Krause, 2Mackey(D. C.)571. Reynolds, 10 Wall. 316; White \ 
 
 3 21 Wall. 490. Bogart, 73 N. Y. 256, 259: Candee 
 
 4 Citing 1 Greenleaf on Evidence, v. Lord, 2 N. Y. 269. A court of on.- 
 § 329. State may, where it lias jurisdiction 
 
 5 Adams v. Franklin, 82 Ga. 168, of the parties, determine the question 
 8 S. E. Rep. 44. whether a judgment between them, 
 
 6 See Chap. IV. §§ 74-77. rendered in another Stat.', was ob- 
 1 See §£ 76, 77 ; Lindsey v. Delano, tained by fraud, and if it was may en- 
 
 78 Iowa 350, 43 N. W. Rep. 218; join the enforcement of it. Davis v. 
 
 Boyer v. Berryman, 123 Ind. 451.24 Cornue, 151 N. V. 179, 15 N. E. Rep. 
 
 N. E. Rep. 249 ; Spotts v. Common- 449. 
 
 wealth, 85 Va. 531, 8 S. E. Rep. 375. 9 King v. Tharp, 26 Iowa 288
 
 47 6 
 
 PROOF OF JUDGMENT. 
 
 § 2/0 
 
 way of impeachment. 1 A third party may, as a general 
 rule, show that the judgment was collusive, and not 
 founded upon an actual indebtedness or liability. 3 Were 
 the rule otherwise the greatest injustice would result, 
 since a stranger to the record cannot ordinarily move to 
 vacate the judgment or prosecute a writ of error or an 
 appeal. 3 The fact that a judgment is entered upon an 
 offer to allow it does not render such judgment collusive 
 in any sense. 4 Teed v. Valentine 5 is a peculiar case relat- 
 ing to the admissibility of evidence to explain a judgment 
 and the motives of the debtor. In that case it appeared 
 that the debt, which was merged in the judgment, repre- 
 
 'Vogt v. Ticknor, 48 N. H. 245; 
 Church v. Chapin, 35 Vt. 231 ; N. Y. 
 & Harlem R. R. Co. v. Kyle, 5 Bosw. 
 (N. Y.) 587; Hills v. Sherwood, 48 
 Cal. 386 ; Law v. Payson, 32 Me. 521 ; 
 Clark v. Anthony, 31 Ark. 546. See 
 Good now v. Smith, 97 Mass. 69 ; Law- 
 son v. Moorman, 85 Va. 880, 9 S. E. 
 Rep. 150 ; Wilkerson v. Schoonmaker. 
 77 Tex. 615, 14 S. W. Rep. 223 ; Por- 
 mann v. Frede, 72 Wis. 226, 39 N. W. 
 Rep. 385 ; Schmidt v. Neimeyer, 100 
 Mo. 207, 13 S. W. Rep. 405 ; Adams v. 
 Franklin, 82 Ga. 168, 8 S. E. Rep. 44 ; 
 (rim v. Kessing, 89 Cal. 478, 26 Pac. 
 Rep. 1074 ; Jamison v. Bagot, 106 Mo. 
 240, 16 S. W. Rep. 697. See § 74, 
 especially the note. 
 
 ■ Vogt v. Ticknor, 48 N. H. 247 ; 
 Gregg \. Bigham, 1 Hill's (S. C.) 
 Law. J'.i'.t; Collinson V. .Jackson, 14 
 Fed. Rep. 309, 8 Sawyer 357; 
 ('lark v. A iithmiv, :;i A.rk. 549 ; Carter 
 v. Bennett, 1 Fla. 283. See Lewis v. 
 Rogers, 16 Pa. St. 18; Sidensparker 
 v. Sidensparker, 52 Me. 481 ; ('lark v. 
 Douglass, <>',' Pa. St. lit; . Wells v. 
 O'Connor, '27 Bun (N Y.i 438. Com- 
 pare Voorhees v. Seymour, 36 Barb. 
 (N. 5 569 Meeker v. Han-is, l!) Cal. 
 Shaw \. I )wight. 27 N. Y. 345 ; 
 
 Whittlesey v. Delaney, 73 N. Y. 571 ; 
 Mandeville v. Reynolds, 68 N. Y. 545. 
 "Fraud and imposition invalidate a 
 judgment as they do all acts." Dob- 
 son v. Pearce, 12 N. Y. 165. The 
 fraud which will authorize one court 
 to reverse, in a collateral proceeding, 
 the judgment of another court is a 
 fraud practiced in the procurement of 
 the judgment, by which the defend- 
 ant was excluded from availing him- 
 self of a defense. Major, etc., of N. 
 Y. v. Brady, 115 N. Y. 599, 22 N. E. 
 Rep. 237. 
 
 3 See Guion v. Liverpool L. & G. 
 Ins. Co., 109 U. S. 173, 3 S. C. Rep. 
 108 ; Sidensparker v. Sidensparker, 52 
 Me. 487; Leonard v. Bryant, 11 Met. 
 (.Mass.) 370: Thomas v. Hubbell, 15 
 N. Y. 405 ; Ex parte Cutting, 94 U. S. 
 14. 
 
 4 Columbus Watch (o. v. Hoden- 
 pyl, 135 N. Y. 430, 32 N. E. Rep. 239. 
 But a confessed judgment will be set 
 aside where, from a consideration of 
 all the circumstances, it appears to 
 have been part of a scheme to defraud 
 creditors. New York Commercial 
 Co. v. Carpenter, 4 Misc. (N. Y. ) 240, 
 24 N. Y. Supp. 248. 
 
 5 65N. Y. 471.
 
 § 2/1 BURDEN OF PROOF. i;; 
 
 sented property sold after the delivery of the deed ; that 
 is, the complainant was a subsequent creditor. The debtor 
 was allowed to testify that he purchased the property as 
 agent for his son, and that he did no business for himself. 
 Though the judgment was conclusive as establishing that 
 he was liable for the debt, it was considered competent to 
 show that the debtor acted as agent, and was not person- 
 ally engaged in business, and hence did not contemplate 
 future indebtedness, and had no design to defraud future 
 creditors. 1 According to some authorities a judgment is 
 only evidence of its own existence; the fact that the claim 
 antedated the fraudulent conveyance must be otherwise 
 shown. 2 
 
 § 271. Burden of proof. — In general the obligation of 
 proving a fact rests upon the party who substantially 
 asserts the affirmative of the issue. 3 The decisions in 
 the various States differ on the point whether a prima 
 facie case is made out by showing fraud on the part of 
 the grantor, which, in the absence of evidence on the 
 part of the grantee, that he is both a bona fide purchaser 
 and a purchaser for value, entitles plaintiff to a judgment, 
 or whether the plaintiff is bound to show, as part of his 
 case, fraud or absence of consideration on the part of the 
 grantee. The correct rule seems to be that a creditor 
 may succeed by proving a fraudulent intent on the part 
 of the grantee. 4 I n some cases the rule is held to be 
 that, in any contest between a grantee and an existing 
 
 1 See Chap. VI., §§ 96-101. especially on the trial and sifting of 
 
 2 Sweet v. Dean, 43 111. App. 650 ; facts to unravel the subtleties of fraud, 
 Burton v. Platter, 53 Fed. Rep. 901; is an important legal right, and if 
 Troy v. Smith, 33 Ala. 469 ; Means v. improperly denied, demands the 
 Hicks, 65 Ala. 241: Marshall v. granting of a new trial. Royce v. 
 Groom, 60 Ala. 121. Gazan, 76 Ga. 79. 
 
 3 Greenl. Ev. § 74; Tompkins v. ' See Richards v. Vaccaro, 67 Miss, 
 Nichols, 53 Ala. 197; Roberts v. 516, 7 So, Rep. 506; cf. Mobile Sai 
 Buckley, 145 N. Y. 223, 39 N. E. Hep. ings Bk. v. McDonnell, 89 Ala. 134, 8 
 966. The right to open and conclude So. Rep. 137.
 
 478 
 
 KUKHKN OF PROOF. 
 
 § 271 
 
 creditor, the burden to prove good faith is on the grantee, 
 even without evidence-of fraud on the part of the grantee. 1 
 With the possible exception of conveyances to a wife by 
 a husband, 2 the burden of proof, in cases where the 
 instrument is valid upon its face, generally rests upon the 
 creditor to show a fraudulent intent 3 or absence of 
 consideration.' Where it is proved that the conveyance 
 was in satisfaction of a valid indebtedness at a fair price, 
 the burden to prove the existence of a secret trust or 
 benefit is on the creditor. 5 If, however, the vendee hav- 
 ing the burden cast upon him, 6 shows that valuable 
 consideration was paid for the transfer of the prop- 
 erty in controversy, the burden of proof shifts and the 
 creditor, in order to recover, must prove fraud on the part 
 of the grantee; 7 then there must be evidence of a fraud- 
 ulent intent on the part of the vendee, 8 or proof that he 
 had notice of the vendor's evil design 9 Where a strong 
 doubt of the integrity of the transaction is created, the 
 duty of making full explanation, and the burden of proof 
 
 1 Fisher v. Moog, 39 Fed. Rep. 665. 
 
 2 See Chap. XX. 
 
 ' Kipp v. Lamoreaux, 81 Mich. 299, 
 45 N. W. Rep. 1002 ; Haynes v. 
 Rogers, 111 X. C. 228, 16 S. E. Rep. 
 416. 
 
 4 See §§ 5, 6. Fuller v. Brewster, 
 
 53 M-l 859; Cooke v. Cooke, 43 Md. 
 588; Anderson v. Roberts, 18 Johns. 
 
 N Y 515 : Meblhop v. Pettibone, 
 
 54 Wis. 653, 11 N. W. Rep. 55:5, 12 Id. 
 448; Starin v Kelly, 88 N. Y. 121 ; 
 Tompkins v. Nichols, 53 Ala. lit?: 
 Barkow v. Sanger, 17 Wva. 500, ■> X. W. 
 Rep. 16; Kellogg v. Slauson, 11 X. Y. 
 804 . 1*11-. - \ v. Gardner, 21 W. Va. 
 176 i Hale v. Wes1 Va. Oil A; Land 
 Co., 11 W Va. 2.".i : Kruse v. Prindle, 
 s 1 tragon 168 ; Jones \ . Jones, b57 
 
 • 88 \ i: Rep. 179; Town 
 Bend \ Stearns, 82 X. Y. 209. But 
 
 see Francis v. Page, 97 Ala. 379, 11 
 So. Rep. 736. 
 
 Pollak v. Searcy, 84 Ala. 259, 4 
 So. Rep. 187 ; Bamberger v. School- 
 field, 160 U. S. 149; 16 S. C. Rep. 225. 
 
 6 Throckmorton v. Rider, 42 Iowa 
 86 ; Spence v. Smith, 34 W. Va. 697, 
 12 S. E. Rep. 828. 
 
 ' Ross v. Wellman, 102 Cal. 4, 36 
 Pac. Rep. 402 ; Jones v. Simpson, 116 
 U.S. 610, 6 S. C. Rep. 53s. 
 
 8 Jones v. Simpson, 1 16 U. S. 609,6 
 S. C. Rep. 538 ; Bluiner v. Bennett, 
 44 Neb. 873, 63 N. W. Rep. 14 ; Hinds 
 v. Keith, 6 C. C. A. 231, 57 Fed. 
 Hep. 10; Tillman v. Heller, 78 Tex. 
 597, 14 S. W. Rep. 700 ; Bambergerv. 
 Schooltield, 150 LI. S. 149, 16 S. C. 
 Rep. 225. 
 
 •See Chap. XIV, §§ 196, 197.
 
 § 271a B( »OKS OF A.CCOUNT. 479 
 
 to sustain the transfer, rests with the insolvent. 1 And 
 where a debtor conveys all his unexempt property to a 
 member of his family in consideration of alleged past 
 services, a case is made out requiring full explanation on 
 the part of the purchaser in respect to the consideration 
 and the honesty of the transaction. 2 The same rule 
 applies where the debtor takes the title to property as 
 trustee for his daughter: 1 The fraud must usually be 
 established by the party alleging it by a fair preponder- 
 ance of proof. 4 
 
 § 271a. Books of account. — Judgment-creditors can fre- 
 quently make use of entries in the debtors' books of 
 account. While such books are not ordinarily received 
 in evidence in an action at law to recover a debt, except 
 under peculiar circumstances, or as against the party who 
 kept the books, vet in an action in equity they are 
 admitted not only against the judgment-debtor, whose 
 transactions they are supposed to record, but also against 
 those deriving property from him, as to such entries as 
 were made while such property was still in his possession. 
 The New York Court of Appeals says : " Although the 
 books are not competent as against a creditor seeking to 
 recover a judgment for his debt, they maybe introduced 
 by a judgment-creditor to support an attack in equity 
 upon the transfer of property by the judgment-debtor to 
 a third person, claiming a valid debt as the consideration 
 for the transfer. Entries made in the ordinary course of 
 business, while the debt in dispute was in process of con- 
 traction, are competent as to another creditor, for the 
 purpose of showing that there was no such debt." 
 
 1 Clements v. Moore, 6 Wall. 315. » Lavelle v. Clark (Ct. App. Kj 
 See also Piddock v. Brown, 3 P. 1896)38 8. W. Rep. 181. 
 
 Wms. 289; Wharton v. May, 5 * Brown v. Herr, 21 Neb. 128, 31 N. 
 
 Ves. 49. W. Rep. 246. 
 
 2 Welch v. BradleY, 45 Minn. 540, 'White v. Benjamin, L50 N. Y. 
 48N.W. Rep. 440. 266, 44 N. E. Rep. 956. See Loos v.
 
 4So 
 
 SECRET TRUST. 
 
 § 272 
 
 .^ 272. Secret trust. — The most common forms of fraudu- 
 lent conveyances are those in which a secret trust or 
 benefit is reserved for the debtor. Manifestly the law 
 will not permit an insolvent to sell his land and convey it 
 without apparent reservation, and yet secretly l retain for 
 himself the right to occupy it for a limited time for his 
 own benefit. 2 A transfer of this character, even though 
 founded upon a good consideration, lacks the elements 
 of good faith, is not what it purports to be, conceals the 
 real agreement existing between the parties, confers upon 
 the debtor the enjoyment of a valuable right which it is 
 intended to place beyond the reach of creditors, and con- 
 stitutes a fraud upon them. 3 " A collusive transfer, 
 placing the property of a debtor out of the reach of his 
 creditors, while securing to him its beneficial enjoyment, 
 is not to be tolerated." ' It is immaterial whether the 
 trust is express and apparent upon the face of the deed 
 or is implied from extrinsic circumstances. 5 The whole 
 
 Wilkinson. 110 N. Y. 209, 18 N. E. 
 Rep. 99; Fleming v. Yost, 137 Ind. 
 95,36 N. E. Rep. 705; Bicknell v. 
 Mellett, 160 Mass. 328, 35 N. E. Rep. 
 1 130. Entries of payments of money 
 made to a grantor at various times, 
 the entries being made at the time of 
 the payments, are admissible as a 
 part of the resgestoe to illustrate and 
 bring out the whole transaction in 
 regard to the transfer and the con- 
 sideration for it. Fleming v. Yost, 
 137 Ind. lir>, 30 X. E. Rep. 7u5. 
 
 1 strattou v. Putney, •'.:: X. II 577, 
 1 Atl. Rep 876; Kain v. Larkin, 4 
 A.pp. Div. <N. \.> -'nil, 38 N. Y . Supp. 
 546. 
 
 - Lukins v. Aird. i; Wall. 79 ; 
 Birmingham Dry Goods Co. v. Roden, 
 110 Ala. ail. sub mini, Birmingham 
 
 I »i v < ; I- 1 'o v. Kelso, [8 80, Rep. 
 
 185. See VVooten v. Clark, 28 Miss. 
 76 . An l iiit \ . < lommercial & R. R, 
 Bank, 17 Miss. 394 ; Towle \. Boit, 
 
 14 N. H. 61 ; Paul v. Crooker. 8 N. 
 H. 288 ; Smith v. Lowell, 6 N. H. 
 67 ; Hills v. Eliot, 12 Mass. 26 ; 
 Fulkerson v. Sappington, 104 Mo. 472, 
 
 15 S. W. Rep. 941; First Nat. Bank of 
 Mankato v. Kansas City Lime Co., 43 
 Mo. App 561 ; Justh v. Wilson, 19 Dist, 
 Col. 532 ; Lang v. Stock well, 55 N. H. 
 561. 
 
 3 See § 22. Young v. Heermans, 
 66 N. Y. 382 ; Crouse v. Frothingham, 
 27 Hun (N. Y.) 125 : Dean v. Skinner. 
 42 Iowa 41S; Sims v. Gaines, 64 Ala. 
 392-397: Rice v. Cunningham 116 
 Mass 4C>9 : Giddings v. Sears, 115 
 Ma>s. 505; Denl v. Ferguson, 182 U. 
 S. 67. See Macomber v. Peck, 39 
 Iowa 351 ; Innis v. Carpenter, 4 Col. 
 App 30,34 Pac. Rep. Ktll ; Bostwick 
 v. Blake, 145 111. 85. 31 N. E. Rep. 38. 
 
 ' Crawford v. Xeal, 144 U. S. 595 : 
 12 S ('. Rep. 759. 
 
 » Coolidge v. Melvin. 12 X. II. 510; 
 Rice v. ( lunningham, 116 Mass. 469.
 
 §273 INSOLVENCY OP DEBTOR. 481 
 
 estate of the debtor is in theory of law liable for the pay- 
 ment of his debts, and it is fraudulent to conceal or secrete 
 
 any part of the insolvent's property from his creditors.' 
 Where a father caused foreclosure proceedings to be 
 brought against himself, and his son became the pur- 
 chaser, and the creditors of the latter proceeded to acquire 
 such interest, it was held that the father would not be 
 permitted to give evidence of a secret trust in the son for 
 the benefit of the father. 2 So a secret agreement upon 
 a sheriff's sale to hold the property in trust for the 
 debtor renders the sale void even as to subsequent 
 creditors. 3 
 
 Secret trusts are manifestly most difficult to establish 
 in court. Surrounding circumstances and the relations of 
 the parties and their conduct and bearing may be given 
 in evidence. Sometimes the isolated bits of evidence 
 shadowing forth the secret arrangement or benefit seem 
 most inconclusive, and unsatisfactory, but when grouped 
 together and considered as a whole, the fraudulent device 
 can be made manifest. 
 
 § 273. Proof of insolvency of debtor. — The term insolvent 
 is usually applied to one whose estate is not sufficient to 
 pay his debts, 4 or a person who is unable to pay all his 
 debts from his own means, 5 and cannot proceed with his 
 
 1 Sparks v. Mack, 31 Ark. 670 ; 5 Riper v. Poppenhausen, 4:5 N. Y. 
 
 Paul v. Crooker, 8N. H. 288 ; Moore v. 68 ; Marsli v. Dunckel, 25 Hun (N. 1 
 
 Wood, 100 111. 454 ; Conover v. Beck- 169, 170. See Buchanan v. Smith, 16 
 
 ett, 38N. J. Eq. 384. See Chap. II. Wall. 308 ; Herrick v. Borst, 4 Hill 
 
 -Conover v. Beckett, 38 N. J. Eq. (N. Y.)652; Brouwer v. Earbeck, 9 
 
 384. N. Y. 594; Peabody v. Knapp, 153 
 
 3 Bostwick v. Blake, 145 111. 85. 34 Mass. 242, 26N. E. Rep. 696; Sabin v. 
 N. E. Rep. 38; Grimes Dry Goods Columbia Fuel Co.. 25 Ore. 15, 34 Pac. 
 Co. v. Shaffer, 41 Neb. 112, 59 N. W. Rep. 692; Holcombe v. Ehrmann- 
 Rep. 741 ; Rucker v. Moss, 84 Va. 634, traut, 46 Minn. 397. 49 X. W. Rep. 
 5 S. E. Rep. 527. 191 ; Chipman v. McClellan, 159 Mass, 
 
 4 Mitchell v. Mitchell, 42 S. C. 483, 368, 34 X. E. Rep. 379; Sacr] v 
 20 S. E. Rep. 405 ; Akers v. Rowan, Lobree, 84 Cal. 46, 23 Pac. Rep. 1088 
 33 S. C. 470, 12 S. E. Hep. 165; Toof Wager v. Ball, 16 Wall. 599. 
 
 v. Martin, 13 W^all. 47. 
 31
 
 482 
 
 INSOLVENCY OF DEBTOR. 
 
 273 
 
 business in the usual course of trade. 1 On the other 
 hand, a party is solvent who has property subject to legal 
 process sufficient to satisfy all his obligations. 2 A find- 
 ing that a man was " financially embarrassed" is not 
 equivalent to a finding of insolvency. One may be finan- 
 cially embarrassed and yet be possessed of abundant 
 property, out of the proceeds of which, when realized upon, 
 his debts could be paid. 3 The inquiry is, has the debtor 
 such means that payment may be enforced at law? 4 An 
 embarrassed debtor may, of course, effect any sales of his 
 property which he deems advantageous, to enable him to 
 raise the necessary means for paying off his creditors, 
 and, within reasonable restrictions, to prevent its sacrifice 
 at forced sale under execution, and for this purpose the 
 law generally recognizes his right to sell either for cash 
 or on credit. 5 
 
 Proof of insolvency of the debtor at the date of the 
 alienation is frequently of vital importance in creditors' 
 suits/' Evidence of the insolvency of the vendor a year 
 after the sale is not material, 7 and where a debtor has prop- 
 erty sufficient to satisfy all his creditors he cannot be said 
 to be insolvent though he lacks sufficient ready money to 
 
 1 Curtis v. Leavitt, 15 N. Y. 141. 
 Berrick v. Borst, 4 Hill (N. Y.) 
 652 approved, Walkenshaw v. Per- 
 zel, 32 How I',. ,'\ Y)240 ; Brouwer 
 x Harbeck,9 N. f.594. See Eddy v. 
 Baldwin, 32 Mo. 374 ; McKown v. 
 Furgason, 17 [owa 637. The term 
 "open and notorious insolvency" is 
 said I" imply not the want of suffi 
 >i«iit property to pay all of one's 
 debts, but the absence of all property 
 
 wit 1 1 in reach of the law, applicable to 
 
 the payment of any debt. Bardesty 
 v, Kinworthy, 8 Blackf. (Ind.) :501. 
 
 Jacobs \. Morrison, 136 N. Y 104, 
 82 S. E. Rep. 58 
 
 ■ Beid v. Lloyd, 52 Mo. A.pp. 282 
 I Dougherty v. < looper, 77 Mo. 531. 
 
 See Hickey v. Ryan, 15 Mo. 62 ; Buck- 
 ner v. Stine, 43 Mo. 407; Waddams 
 v. Humphrey. 22 111. 663 ; Nelson v. 
 Smith, 28 111. 495. In Jacobs v. Morri- 
 son, 136 N. Y. 104, 32 N. E. Rep. 552, 
 the court says: "The finding that 
 the grantor was ' financially embar- 
 rassed ' docs not affect his conveyance, 
 and certainly is not equivalent to a 
 finding of insolvency. One may be 
 ■ financially embarrassed ' and yet be 
 possessed of abundant property, oul 
 
 of the proceeds of which, when real- 
 ized upon, his debts could be paid." 
 • Ncve.s v. Back, 138 [nd. 260, 37 
 
 V E. Kep. 791, and cases cited. 
 
 1 Martin v. Fox, 40 Mo. App. 
 664.
 
 73 
 
 [NSOLVENCS OF DEBTOR. 
 
 
 meet maturing obligations. 1 How can the evidence upon 
 this point of solvency be best adduced? It is the con- 
 dition of the debtor and not his belief as to solvency that 
 the law regards. 2 The rule has been formulated that 
 " the opinion of a witness that a person is solvent or 
 insolvent is inadmissible." 3 In Denman v. Campbell 4 
 this question was put: "Is Donal Campbell a man of 
 responsibility?" and the answer given under objection 
 was : " So far as I know, he was not responsible." The 
 reception of this evidence was held to be error. The fact 
 that a man is reputed among his neighbors to be worth a 
 given sum does not prove that he is. nor is it admissible 
 
 Smith v. ( iollins, 94 Ala. 3 
 
 S. Rep. 334. 
 
 - Austin v. First Nat. Bk.. 47 111. 
 App. 225. 
 
 3 Lawson on Expert & Opinion Evi- 
 dence, p. 515. Citing Brice v. Lide, 
 30 Ala. 647 ; Nuckolls v. Pinkston. 88 
 Ala. 615 : Royall v. McKenzie. 35 
 Ala. 363. But see Breckinridge v. 
 Taylor, 5 Dana iKv. i 114: Crawford 
 v. Andrews. 6 Ga. 244 : Riggins v. 
 Brown. 12 Ga. 273; Sherman v. 
 Blodgett, 28 Vt. 149. 
 
 * 7 Ban X. Y. 88. In Babe »ck v. 
 Middlesex Sav. Bank. 28 Conn. 306, 
 the court said : "We think that the 
 court below erred in receiving the 
 opinion of the judge of probate a- I 
 the pecuniary ability of H. D. Smith, 
 for the purpose of rebutting the evi- 
 dence adduced by the defendant - 
 show that he whs destitute of prop- 
 erty. The witness did not profes~ t< i 
 have any knowledge whatever in re- 
 gard to the property or pecuniary cir- 
 cumstances of Smith or any meai 
 forming a judgment or opinion on 
 that subject, excepting from the 
 style in which lie and his family 
 lived, the manner of his leaving the 
 State, and the fact that he had made, 
 
 before the court of probate, do <li-- 
 -ure of his property under oath, in 
 the proceedings in insolvency against 
 him. Although, as to the value of 
 property we resort to the judgment 
 or opinion of persons acquainted with 
 it. its exi-tence and ownership 
 facts to he proved, whether directly 
 or otherwise, like other facts, by the 
 knowledge of wit] 1 not by 
 
 their opinions, inferences or surn 
 derived from whatever source. The 
 present ie not like the cases where an 
 opinion i- sought of an expert; or 
 those in which, for certain purpoG 
 the reputation of a pen - to 
 
 pecuniary ability may be shown )<y 
 witnesses who have no personal 
 knowledge of his situation. Tin- in- 
 quiry here was not whether Smith 
 - reputed t" be, hut whether he 
 was m fact, destitute of property. 
 On such an inquiry nothing could 
 more dangerous than t the 
 
 opinions of persons founded on such 
 fallacious gro amon run 
 
 or a man's pr his cir- 
 
 CUlii- 
 
 opinions of others, or. what in many 
 - - - relied on, his 
 
 style '>r manner of living."'
 
 |S i [NSOUS l\' V I 'I DEBTOR. § J~3 
 
 upon the issue of his making a fraudulent disposition of 
 his property. 1 In a case which arose in New York, in 
 which the primary and all-important question was whether 
 a corporation was solvent or not, 2 many of the witnesses 
 examined on the point expressed nothing more than an 
 opinion upon the subject, without referring to any facts 
 from which such opinion was formed. It was very prop- 
 erly ruled that such evidence was entirely insufficient, and 
 could never form a basis for any action of the court. :; 
 Evidence that a man was generally reputed to be 
 insolvent is competent upon the theory that the fact to 
 be proved is of a negative character, scarcely admitting 
 of direct and positive proof. 4 In the great majority of 
 cases, it would be impracticable and exceedingly tedious 
 and expensive to procure any other proof of insolvency 
 than that of general reputation in the community where 
 the debtor resides and is known."' If the witness is able 
 to state numerous facts touching the property of the 
 debtor, and the amount of his indebtedness, which show 
 a very full and intimate acquaintance with his affairs and 
 his utter insolvency, he may be permitted to answer a 
 question whether or not the debtor was able to pay his 
 
 1 Firsl Nat. Bk. v. Buck, 56 Midi, ami his means of knowing the situ- 
 
 W. Rep. 57. ation ami circumstances of the l>ail ; 
 
 1 On the question of the insolvency certainly there could then be no ob- 
 
 <>f a corporation, evidence of a notary jection to his giving hi> opinion from 
 
 that In' had protested for non-pay- his knowledge of the bail, and of his 
 
 ment commercial paper due by it is affairs, what he thought he was 
 
 admissible. Mi-h v. Mam, si Md. 36, worth." 
 
 :?] Atl. Rep. T'.i'.. 'Nininger v. Knox, 8 Minn. 148; 
 
 Brundredv. Paterson Machine Griffith v. Parks, 32 Md. 1. Crawford 
 
 1 95 Compare Ninin- v. Berry, <"> <iill & J. (Md.) 63 ; Met- 
 
 Knox. 8 Minn. 140; Andrews calf v. Munson, in Mien (Mass.) 198: 
 
 aes, 10 Ala. 460. In Sherman v. Hank of Middlebury \. Rutland, 38 
 
 Blodgetl 28Vt. 149, the court said : Vt. 114; I v. Kilburn, :) Gray 
 
 " The solvency of an individual is a Mass 594 
 
 '"•<" somewhat in opinion ; Griffith v. Parks, 82 Md. 1; Wat- 
 
 and. in the present case, the witness kin- v. Wbrthington, 2 Bland (Md.) 
 
 had stated whal property the bail 509,540,541. 
 
 owned at the time he entered hail
 
 § 2;4 INSOLVENCY « >F VENDEE. |.'-:, 
 
 debts, at a particular time, in the usual course of business. 
 This is considered as calling for a fact, and not for the 
 opinion of the witness. 1 We may here state that there 
 is no presumption of law, arising from knowledge of 
 insolvency, that the assignee knew of the debtor's inten- 
 tion to defraud creditors. 2 Return of an execution nulla 
 bona is prima facie evidence of insolvency. 3 But the 
 mere fact that a vendee knows that his vendor was 
 insolvent will not overturn a conveyance founded upon 
 adequate consideration. 1 Where one engaged in com- 
 mercial pursuit permits his commercial paper to be dis- 
 honored, and his property to be attached, this is evidence 
 of insolvency. 5 And a statement that a party is indebted 
 to clivers persons in considerable sums of money, which 
 he is unable to pay, is a declaration of insolvency. 
 " When a person is unable to pay his debts, he is under- 
 stood to be insolvent." 6 
 
 §274. Insolvency of vendee. — The ability of the vendee 
 to pay the purchase-money for the property, before and 
 at the time of the transaction, is a material circumstance 
 for the consideration of the jury, and testimony upon 
 that point should be admitted. 7 The purchaser may 
 testify as to the sources from which he procured the 
 
 1 Thompson v. Hall, 45 Barb. (N.Y.) 25 N. E. Rep. L33; Ogden State Bank 
 210. See Blanchard v. Mann, 1 Allen v. Barker, 12 Utah 27, 10 Pac. Rep. 
 (Mass.) 433; Iselin v. Peck, 2 Rob. 769. 
 
 (N. Y.) 639. ' Erdall v. Atwood, 7!) Wis. 1. 17 
 
 2 Cannon v. Young, 89 N. C. 264. N. W. Rep. 1124: Warner v. Little- 
 On the issue whether a conveyance field, 89 Mich. 329, 50 N. W. Rep. 721; 
 of real estate is fraudulent as to cred- National Bk. of Oshkosh \. Nat. Bk. 
 itors, evidence of the register of deeds of Ironwood, LOO Mich. 485, 59 N. W . 
 for the district in which the estate Rep. 231. 
 
 lies, that he has searched the records ■''Tuthill v. Skidmore, 124 N Y. 148, 
 
 of the registry, and found that there 26 N. E. Rep. 348; Booth \. Powers, 
 
 was no other property standing in 5(5 N. Y. 22, 32. 
 
 the name of the grantor, is admis- 'Cunningham \. Norton, 125 1 .8 
 
 sible. Bristol Co. Sav. Bank v. Heavy, 77, DO, 8 S. C. Rep. 804. 
 
 128 Mass. 298. ' Johnson v. Lovelace, 51 Ga. 19. 
 
 3 Warmoth v. Drydeu, 125 End. 355,
 
 (.86 GENERAL REPUTATION. £-75 
 
 money. 1 For the purpose of showing that a mortgage 
 is fraudulent, it is competent to prove that in the country 
 where the mortgagee was bom and grew up, and con- 
 tinued to reside, he was never known to have any property 
 or means, or to be engaged in any business, 2 and was 
 not in a position to lend money. 3 So the creditor may 
 show that the grantee was a married woman, having no 
 separate estate, notoriously poor, and destitute of means 
 to make the payment claimed or contemplated. 4 Testi- 
 mony of this kind is often of vital importance to cred- 
 itors, as nothing is more common or more persuasive to 
 the minds of a court or a jury as to the presence of fraud 
 than proof that the debtor's property has passed into the 
 hands of an irresponsible figurehead, who was not pos- 
 sessed of the means with which to purchase it, and had 
 no use for it. 
 
 The schedules of an insolvent debtor are not com- 
 petent evidence against a third party, to prove the 
 indebtedness of the assignor. 5 
 
 .^ 275. General reputation. — Evidence of the general 
 reputation of all the parties to an alleged fraudulent 
 transaction, as to their credit and pecuniary responsibility, 
 may be admitted." In this respect the general reputation 
 of the grantor is a fact which, with other circumstances, 
 has some tendency to show that the grantee understood 
 his motives in making the conveyance, and possibly par- 
 ticipated in his unlawful purpose; and proof of the 
 
 Tuckwood v. Eanthorn, '17 Wis. ■'■ Halm v. Penney, 00 Minn. 4S7, 
 
 BO N. W. Rep 705. 62 N. W. Rep. 1129. 
 
 Stebbins v. Miller, 12 Allen (Mass.) 6 Hall v. Ritenour, 2 West. Rep, 
 
 496; sub nom. Gordon v. Ritenour, 87 
 
 Demerit! \ Miles, 22 N. !l. 523. Mo. 54; Ferbrache v. Martin (Idaho, 
 
 • Lmsden v. Manchester, 10 Barb. 1892) 32 Pac. Rep. 252 ; Hahn v. Pen- 
 
 N f.) 168. Seee P. Danby v. Sharp, aey, 60 .Minn. 487, 62 N. W. Rep. 
 
 2 MacAr 1 D C.) 185 . Stevens v. Dill- 1129. 
 man, 86 111. 288 1 Castle v. Bullard,28 
 Bow
 
 £2/6 CONCERNING RES GESTAE. 4X7 
 
 grantee's want of credit would have a tendency to show 
 that the conveyance was not made in good faith, 
 especially if made in reliance upon his future ability to 
 pay. 1 Evidence that the grantee's general credit was 
 bad, though somewhat remote, cannot be said to be incom- 
 petent." Where fraud is charged and sought to be 
 established by proof of circumstances, evidence of general 
 good character is admissible to repel it, as in criminal 
 cases. 3 General reputation of doing business on bor- 
 rowed money is admissible on the issue as to whether the 
 defendant had reasonable cause to believe the debtor 
 insolvent. 4 
 
 § 276. Concerning res gestae. — Where it becomes neces- 
 sary to discover the intention of a person, or to investi- 
 gate the nature of a particular act, evidence of what the 
 person said at the time of doing it or contemporaneous 
 with the transaction 5 is received as part of the res gestce? 
 This important doctrine has been liberally applied in the 
 United States, and especially in the class of litigation 
 under consideration. The declarations must relate to 
 the act which they characterize ; they must be calculated 
 to unfold the nature and quality of the facts which they 
 are intended to explain, and they must so harmonize with 
 
 1 Sweetser v. Bates, 117 Mass. 468. H. R. R. R. Co., 95 N. Y. 374 ; Ban 
 
 '-' Cook v. Mason, 5 Allen (Mass.) over Railroad Co. v. Coyle, 55 Pa. St. 
 
 212. Compare Lee v. Kilburn, 3 Gray 396; Loos v. Wilkinson, 1 10 X. Y. 211, 
 
 (Mass.) 594; Metcalf v. Munson, 10 18 N. E. Rep. 99 ; Moore v. Meacham, 
 
 Allen (Mass.) 491 ; Amsden v. Man- 10 N. Y. 207 ; Schnicker v. People, 88 
 
 Chester, 40 Barb. (N. Y.) 163. N. V. 192; Swift v. Mass. Mutual Life 
 
 3 Werts v. Spearman, 22 S. C. 219; Ins. Co., 03 N. Y. 186 ; Sanger v. Col- 
 
 Bowerman v. Bowerman, 76 Hun bert, 84 Tex. 668, 19 S. W. Rep. 863 ; 
 
 (N. Y.) 46, 27 N. Y. Supp. 579; affi'd Reiley v. Haynes, 38 Kara. 259, 16 
 
 145 N. Y. 598 ; 40 N. E. Rep. 163. Pac. Rep. 440 ; Smith v. Nat. Benefit 
 
 4 Killam v. Perce, 153 Mass. 502, So,-., L33 N. Y. 85, 25 \. I.. Rep 
 
 27 N. E. Rep. 520. L97; Jenne v. Joslyn,41 Vt. 178 ; Bar- 
 
 5 Flannery v. Van Tassel, 131 X. ton v. Lyons, 97 Tenn. L80, 36 S. W. 
 Y. 639, 30 N. E. Rep. 24. Rep. 851. 
 
 6 Waldele v. New York Central &
 
 488 DECLARATIONS BEFORE SALE. § 277 
 
 those facts as to form one transaction. 1 The declara- 
 tions must grow out of the principal fact or transaction 
 illustrate its character, be contemporaneous with it and 
 derive some degree of credit from it. 2 Thus a wife may 
 employ her husband as an agent, and his utterances while 
 so acting, in taking a bill of sale, constitute part of the 
 res gestce and are competent evidence for the wife. 3 The 
 declarations accompanying an act are admissible as 
 explanatory of the character and motives of the act. 4 They 
 in this way become part of the res gestce. The declarations 
 of the grantor made to the notary at the time of executing 
 the deed may be shown ; 5 so may the statement of the 
 debtor to a clerk as to who is employing him. It is the 
 duty of the jury to determine the weight of these decla- 
 rations, by ascertaining whether they were sincere, or 
 were made to withdraw attention from the real nature of 
 the act, or to hide the real purpose of it. 7 The declara- 
 tions which are merely narrative of a past transaction are 
 not admissible as part of the res gesta', s but the declara- 
 tions of a debtor prior to the alleged inception of the 
 fraud are admissible in favor of the grantee. 9 The test 
 is as to whether the testimony offered throws light upon 
 the transaction. 111 
 
 S 277. Declarations before sale — Realty and personalty. — 
 The conduct and declarations of the grantor 11 respecting 
 
 Smith v. Nat. Benefit Soc, L23 • Sweet v. Wright, 57 Iowa 510. 10 
 
 N. Y. 85, 25 N. K. Rep. 197; Tilson v. N. W. Rep. 870. 
 
 Terwilliger, 56 N. Y. 277. 7 Potter v. McDowell, 81 Mo. 74. 
 
 Bush v. Roberts, ill N. Y. 283, B Waldele v. New York Central & 
 
 is N. E. Rep ::;.': Lund v. Inhabitants H. R. R. R. Co., 95 N. Y. 274 
 
 of Tyngsborough, 9 Cush. (Mass.) 86. a S\van v. Morgan, 88 Hun (N. Y.) 
 
 K.IK v. Campbell, 1 Keyes (N. 880, 84 N. Y. Supp. 829. 
 
 ">Ogden State Bk. v. Barker, 12 
 
 'See Stewart v. Fenner, 81 Pa. St. Utah 27, 40 Pac. Rep. 768. 
 
 17K m )' I fare v. Duckworth, 4 Wash. 470, 
 
 lei ■ Free. 114 Wo. 860. 31 80 Pac. Rep. 724. See Breathwil v. 
 
 s. W. Rep Bank of Fordyce, 60Ark.35, 28 S. W.
 
 %^77 
 
 DECLARATK )NS BEFi IRE s U.K. 
 
 
 the estate conveyed, tending to prove a fraudulent int. n 
 tion on his part before the conveyance, arc proper evi- 
 dence for the jury upon an inquiry into the validity of 
 the conveyance by a creditor or subsequent purchaser, 
 who alleges that it is fraudulent. 1 This evidence is con- 
 sidered competent to prove that the conveyance was 
 fraudulent on the part of the grantor, and does not preju- 
 dice the grantee, who is not affected if he is a bona fide 
 purchaser for a valuable consideration. The evidence is 
 not admissible against him where there is a valuable con- 
 sideration for the transfer in the absence of proof of 
 conspiracy. 2 To avoid the transaction as convinous frau- 
 dulent intent must, as we have said, be shown on the 
 part of the grantee as well as of the grantor. 3 So admis- 
 sions made by one who, at the time, held the title to 
 land, to the effect that he had contracted to sell it to 
 another, and had received payment for it, are competent 
 
 Rep. 511 ; Chase v. Chase, 105 Mass. 
 388; Alexander v. Caldwell, 55 Ala. 
 517 ; Hiner v. Hawkins, 59 Ark. 303, 
 27 8. W. Rep. G5 ; Seeleman v. Hoag- 
 land, 19 Col. 231, 34 Pac. Rep. 995. 
 
 1 Bridge v. Eggleston, 14 Mass. 245, 
 per Parker, C. J., 7 Am. Dec. 209. See 
 Alexander v. Caldwell, 55 Ala. 517 ; 
 Knox v. McFarran, 4 Col. 596 ; Ran- 
 degger v. Ehrhardt, 51 111. 101 ; Chase 
 v. Chase, 105 Mass. 388 : Stowell v. 
 Hazelett, 66 N. Y. 635 ; Davis v. 
 Stern. 15 La. Ann. 177 ; McKinnon v. 
 Reliance Lumber Co., 63 Texas 31. 
 See Elliott v. Stoddard, 98 Mass. 145 ; 
 McLane v. Johnson, 43 Vt. 48 ; Grimes 
 v. Hill, 15 Col 359, 25 Pac. Rep. 69*; 
 National Bank v. Beard, 55 Kan. 
 773, 42 Pac. Rep. 320: Wyckoff v. 
 Carr, 8 Mich. 44. In Truax v. 
 Slater, 86 N. Y. 632, Earl, J., is re- 
 ported in memorandum to have sail I : 
 " The mere declarations of an assignor 
 of a chose in action, forming no part 
 of any res gestte, are not competent 
 
 to prejudice the title of his assignee, 
 whether the assignee be one lor value, 
 or merely a trustee for creditors, and 
 whether such declarations be ante 
 cedent or subsequent to the assign 
 ment." See Bush v. Roberts, 11! N. 
 Y. 278. This statement of the rule 
 would seem to be inaccurate. While 
 a partj holds the title and possession, 
 it would (dearly seem to be compe 
 tent to give evidence of Ids declara- 
 tions made while the possession con- 
 tinued as characterizing tin- nature 
 of it. Compare in this connection 
 Von Kaehs v. Kretz, 72 X. \ . 548 . 
 Loos v. Wilkinson. 110 X. V. L95 ; 
 Clews v. Kehr, 90 X. Y. 688. 
 
 - Bush v. Roberts, ill X. Y. 278, 
 is \. |-;. Rep. ;:;-j; B.T. Simon-Gregorj 
 Dry Goods ( !o. \. McMahan, til .Mo. 
 App. r>00. See Flannerj \ Van Tas- 
 sel, 127 N. Y. 631, 27 X. E. Rep. 398. 
 
 s Carpenter v. Muren, 42 Barb. (N. 
 Yj 300 ; 1 In- bes v. Mont} . 24 towa 
 
 499. See Chap. XIV.
 
 490 
 
 I »E< I.AKAI [ONS AFTER SALE. 
 
 § 278 
 
 evidence against those claiming title under him. 1 The 
 principle upon which such evidence is received is that the 
 declarant was so situated that he probably knew the truth, 
 and his interests were such that he would not have made 
 the admissions to the prejudice of his title or possession 
 unless they were true. The regard which one so situated 
 would have for his own interest is considered sufficient 
 security against falsehood. In New York, after some 
 uncertainty, the rule was finally settled 2 that such admis- 
 sions in controversies concerning personal property would 
 be excluded. 5 
 
 £278. Declarations of debtor after sale. —As a general 
 rule the declarations of a vendor, after transfer and 
 delivery of possession, cannot be given in evidence 
 against the vendee, 4 unless they are made in his pres- 
 
 1 Chadwick v. Former, 69 N. Y. 404. 
 The declarations of the debtor prior 
 to the inception of the fraud are 
 admissible in favor of the grantee. 
 Swan v. Morgan, 88 Hun (X. Y.)380, 
 34 X. Y. Supp. 829. 
 
 8 Paige v. Cagwin, 7 Hill (X. Y.) 
 361 ; Chadwick v. Former, 69 X. Y. 
 407 ; Truax v. Slater, 86 X. Y. 630 ; 
 Flannery v. Van Tassel, 127 X. Y. 
 631, '27 X. E. Rep. 393; Dodge v. 
 Freedman'e Sav. and Trust Co., 93 U. 
 S. 379. 
 
 ( lhadwick v. Fonner. 69 X. Y. 407. 
 
 ■ Tilson v. Terwilliger, 56 N. Y. -.'77 ; 
 Cii\l.-rv. McCartney, 40 X. Y. 221; 
 Chase v. Horton, 143 Mass. 118, 9 
 N. E. Rep. 31 ; Roberts v. Medbery, 
 132 .Ma-. 106 . Winchester & Part- 
 ridge Mfg. Co. v. Creary, 116 U. S. 
 161, 6 s. C. Rep. 869; Burnham v. 
 Brennan, 71 N. V. 597 ; Ohio Coal 
 < lompany \ . ! lavenport, 87 I )hio St. 
 194 : < loyne v. Weaver, 84 X. Y. 
 886; Flannery v. Van Tassel, 127 X. 
 
 Y. 881 . The i'.i.'i Miller si Co. v. 
 
 Caaebeer, 58 Mo. A.pp. 840; sparks v. 
 
 Brown, 46 Mo. App. 529; Redfield 
 v. Buck, 35 Conn. 328 ; Tabor v. Van 
 Tassell, 86 X. Y. 642 ; Randegger v. 
 Ehrliardt, 51 111. 101 ; Kennedy v. 
 Divine, 77Ind.493 ; Garner v. Graves, 
 54 Ind. 188; Hirschfeld v. Wil- 
 liamson, 1 West Coast Rep. 150 ; 
 Meyer v. Va. & T. R. R. Co. 16 Xev. 
 343 ; Sumner v. Cook, 12 Kan. 16a ; 
 Scheble v. Jordan, 30 Kan. 353. In 
 Holbrook v. Holbrook, 113 Mass. 76, 
 Ames, J., said : "It has often ben 
 held, and is a well-established rule, 
 that upon the trial of the question 
 whether a particular conveyance was 
 made to defraud creditors, it is not 
 competent to show the acts or decla- 
 rations of the grantor after the con- 
 veyance, to impair or affect the power 
 of the grantee." Citing Bridge v. 
 Eggleston, 14 Mass. 245 ; Foster v. 
 Hall, 12 Pick. (Mass.) 89; Aldrich 
 v. Earle, 13 Gray (Mass. ) 578; Taylor 
 v. Robinson. 2 Allen (Mass.) 562. See 
 Clements v. Moore, 6 Wall. 299; 
 Lewis v. Wilcox, 6 Xev. 215 ; Thorn- 
 ton v. Tandy, 39 Tex. 544; Pier v.
 
 §278 
 
 DECLARATIONS \l- II. R SALE. 
 
 491 
 
 ence. 1 Such declarations are mere hearsay," and not 
 made under the sanction of an oath ; the debtor bears no 
 relation to the estate, and it has been frequently held that 
 exceptions to the exclusion of this class of evidence should 
 not be multiplied. A vendor after parting with his prop- 
 erty has no more power to impress the title, either by his 
 acts or utterances, than a mere stranger. 3 The decla- 
 rations of a former owner to qualify or disparage his title 
 are only admissible when made while the title is in him. 
 Such utterances cannot be allowed to affect a title which 
 is subsequently acquired. 4 The declarations of the 
 
 Duff, 63 Pa. St. 59 ; City Nat Bank v. 
 Hamilton, 34 N. J. Eq. 163 ; Garrahy 
 v. Green, 32 Tex. 202 ; Taylor v. 
 Webb, 54 Miss. 36 ; Warren v. Wil- 
 liams, 52 Me. 346 ; Bullis v. Mont- 
 gomery, 50 N. Y. 358 ; Watlswortb v. 
 Williams, 100 Mass. 126 ; Silliman v. 
 Haas, 151 Fa. St. 58, 25 Atl. Rep. 72 ; 
 McElfatrick v. Hicks, 21 Pa. St. 402 ; 
 Unangst v. Goodyear I. R. Mfg. Co., 
 141 Pa. St. 127, 21 Atl. Rep. 499 : 
 Tiscb v. Utz, 142 Pa. St. 186, 21 Atl. 
 Rep. 808 ; Winchester v. Charter, 97 
 Mass. 140 ; Clark v. Wilson, 127 111. 
 449, 19 N. E. Rep. 860 ; Jones v. Sny- 
 der, 117 Ind. 229, 20 N. E. Rep. 140; 
 Thomas v. Black, 84 Cal. 221, 23 Pac. 
 Rep. 1037; Hicks v. Sharp, 89 Ga. 
 311, 15 S. E. Rep. 314 ; O'Donnell v. 
 Hall, 154 Mass. 429, 28 N. E. Rep. 349. 
 Declarations after sale but before de- 
 livery were held admissible as against 
 the grantee. Bovvden v. Spelhnan, 59 
 Ark. 251, 27 S. W. Rep. 602. Com- 
 pare Truax v. Slater, 86 N. Y. 630. 
 
 1 Harris v. Russell, 93 Ala. 59, 9 So. 
 Rep. 541. 
 
 - In Winchester & Partridge M fg. 
 Co. v. Creary, 116 IT. S. 165, the court 
 said : "The plaintiff was itself in ac- 
 tual possession, exercising by its agent 
 full control. The vendors, it is true, 
 entered plaintiff's service as soon as 
 
 the sale was made and possession was 
 surrendered, but only as clerks or 
 salesmen, with no authority excepl 
 such as employees of that character 
 ordinarily exercise What they might 
 say, not under oath, to others, after 
 possession was surrendered, as to the 
 real nature of the sale, was win 'II \ ir- 
 relevant. They were competent to 
 testify under oath, and subject to 
 cross-examination, as to any facts im 
 mediately connected with the sale, of 
 which they had knowledge ; but their 
 statements out of court, they nol be- 
 ing parties to the issues to be tried, 
 were mere hearsay. After the sale, 
 their interest in the property was 
 gone. Having become strangers to 
 the title, their admissions are no more 
 binding on the vendee than the ad- 
 missions of others. It is againsl all 
 principle that their declarations, mad.' 
 after they had parted with the title 
 and surrendered possession, should be 
 allowed to destroy the title of their 
 vendee." 
 
 :i Stewart v. Thomas, 35 Mo. 207. 
 
 4 Noyes v. Morrill. L08 Mass. 396 . 
 Stockwell v. Blarney, 129 Mass. 312; 
 Welcome v. Mitchell, 81 Wis. 566, 51 
 N. W. Rep. 1080. But where both 
 grantor and grantee are made parties 
 defendant, such subsequent decla
 
 49- 
 
 POSSESSION AFTER CONVEYAN< I. 
 
 & 2 79 
 
 o-rantee while on his way to the magistrate to obtain the 
 acknowledgment of the grantor, and before the deeds 
 were delivered, substantially to the effect that the deeds 
 were being executed because of apprehensions on the 
 part of the grantor that the property would be taken to 
 satisfy the debt due the demandant, were excluded 
 because the deed had not been delivered at the time the 
 declarations were made, and it was clear that " as admis- 
 sions in disparagement of title, the evidence was not com- 
 petent." ! 
 
 § 279. Possession after conveyance. — Elsewhere in this 
 discussion the failure to effect a change of possession is 
 shown to raise either a. prima facie or absolute presump- 
 tion of fraud. 2 As proof of the continued possession of 
 the vendor is competent evidence to impeach the sup- 
 posed transfer, it would seem to follow that any acts or 
 declarations of the possessor while so retaining the prop- 
 erty must also be competent as characterizing his posses- 
 sion. 3 So long as the debtor remains in possession of 
 
 rations were admissible to show fraud 
 of the grantor, although not admis- 
 sible against the grantee. See also 
 to same effect McDonald v. Bowman, 
 40 Neb. 269, 58 X. W. Rep. 704 ; Wright 
 v. Towle, (17 Mich 255, U N. W. Rep. 
 578 : Claflin v. Ballance, 91 Ga. ill. 18 
 8 I. Rep. 309. They are not admis- 
 sible against the grantee eveo where 
 there is evidence tending to show con- 
 spiracy. Scofield v. Spauldlng, 54 
 Hun (N. Y.i 583, 7 X. V. Sup,, 927 : 
 Harris v. Russell, 93 Ala. 59, 9 80. Rep. 
 541. 
 
 Stockwell v. Blarney, 129 Mass. 
 312 
 
 1 !hap XVI 1. .:.■ 848 352 
 
 Eirby v. Bfasten, 70 X. C. 540; 
 
 Carnahan v. W 1,2 Swan (Tenn.) 
 
 502 : fates « fates, 76 X. C. 142; 
 Saenschen v. Luchtemeyer, 19 Mo. 
 51 : ' 'ani.v v ( iarney, 7 Bax. (Tenn.) 
 
 287 ; Tedrowe v. Esher, 56 Ind. 447 ; 
 United States v. Griswold, 8 Fed. Rep. 
 560: Caboon v. Marshall. 25 Cal. 202 : 
 Oatis v. Brown, 59 Ga. 716; Mills v. 
 Thompson, 72 Mo. 309 ; Adams v. 
 Davidson. 10 X. V. 309 : Xeal v. Fos- 
 ter. 36 Fed. Rep. 34 ; United States v. 
 Griswold. 7 Sawy. 316; Bowden v. 
 Spellman, 59 Ark. 251. 27 S. W. Rep. 
 602. See Knight v. Forward. 63 Barb. 
 (N. V.i 311 ; Hilliard v. Phillips, si 
 N. C. 104, Smith, C. J., dissenting 
 upon the ground thai the declarations 
 in this latter case did not qualify or 
 explain the possession, nor disparage 
 declarant's title, but related to a pre- 
 existing facl to impeach the validity 
 and effect of his own act in convey- 
 ing title lt> incompetency for such 
 a purpose he considered fully estab- 
 lished by the authorities. 1 Greeul. 
 Ev. §§ lUit, 110; Ward v. Saunders, 6
 
 - 
 
 property which once belonged to him. and which his cr 
 itor is seeking to condemn as fraudulently conveyed, the 
 - of the fraud, if any. may be considered as in 
 progress, and his declarations, though made after he has 
 parted with the formal paper title, may be given in 
 dence for the creditor against the claimant. 1 by reason of 
 the continuous possession which accompanied them. 
 Where the assignor continues in possession of the 
 assigned property, his acts and declarations while in 
 actual possession may be given in evidence as part of the 
 especially if there is absolutely no break made 
 in the continuity of the possession after the real or pre- 
 tended sale. 3 The declarations are received in such 
 cases upon the ground that they show the nature, object 
 or motives of the act which they accompany, and which 
 is the subject of inquir be a part of the r 
 
 however, the declarations must be made at the time the 
 act was done which they are supposed to characterize ; 
 they must be calculated to unfold the nature and quality 
 of the facts which they purport to explain ; and must 
 harmonize with such facts so as to form one transaction."' 
 The declarations must be concomitant with the principal 
 act or transaction of which they are considered a part, 
 and so connected with it as to be regarded as the result 
 and consequence of co-existing motives.' 
 
 ;: - v. iins v. Davidson. 1' 
 
 eler, 6 Ired. X. C-. Law, 196; *< «*pare "Williams v. Willi 
 Hodg st. S . 3: Bur- 143 X. Y. 15 I 
 
 bank v. Wiley. ~ • X 601. Loos v. Wilkinson. 110 X. Y 
 
 ■Williams v. Hart. 10 i: :iep. 99. 
 
 citing Oaris v. Brown, X6: 
 
 Sav. Bank v. McDonnell. » S 
 Ala. 434. 8 So. Rep. 137 ; N 
 
 ter. 13 Sawy. 2 3 B rton v. Lyons, it is said that the m- it a 
 
 - W. Rep. 95 per- . - 
 
 X-wlin v 
 Williamson r. William- 11 Lea which ! 
 
 - 
 Humph. 509. thai .udulent
 
 494 GOOD FAITH — CONSIDERATION. %% 2J9&-2Jgc 
 
 § 279a. Professions of good faith.— It is not uncommon 
 for fraudulent debtors to make professions of honesty. 
 The Supreme Court of Iowa consider that the bona fide 
 character of a debtor's transactions, when drawn in ques- 
 tion, cannot be proved by such professions and that the 
 same are not competent evidence. 1 
 
 ?j 279b. Intention — Knowledge. — As we have seen,~ a 
 party may testify concerning- his intention in performing 
 an act where such intention becomes material. 3 Hence 
 achattle mortgagee, where the mortgage contains a danger 
 clause, may testify as to his deeming himself in danger 
 where possession was taken by him prior to the maturity 
 of the mortgage. 1 And a witness may be asked whether 
 he conveyed away property to prevent it from being 
 attached. 5 And it is competent for a vendee to testify 
 that he had no knowledge or notice that the vendor 
 intended to defraud his creditors.' 1 
 
 §2790. Consideration. — When a debtor undertakes to 
 transfer his property in recognition of an indebtedness to 
 his wife, originating twenty-five years before, no account of 
 which had been kept, and no interest or principal paid or 
 requested, the financial condition of both parties for the 
 entire period is a proper subject of inquiry, and the broad- 
 est latitude should be allowed to the judgment-creditor. 7 
 
 a creditor. This is certainly a border 1 Tex. Civ. App. 657, -OS. W. Rep. 
 
 case. The effeel of the failure to 952. 
 
 change possession is elsewhere con- 'Barrett v. Bart, 42 Ohio St. 41 ; 
 
 sidered. See Chap. XVII. Buggans v. Fryer. I Fans. (N. Y.) 
 
 Barwick v Weddington, 7:: Iowa 276. 
 
 802,84 N. W 868. Ballock v. Alvord, 61 Conn. 194, 
 
 3eef J05. 23 At I. Rep. LSI. 
 
 Graves v. Graves, 45 N. II. 323; 8 Richolson v. Freeman, 50 Kans. 
 
 Bedell v. Chase, '64 N V. 888; Wilson 165, L3 Pac. Rep. 772. Compare Gen- 
 
 v. Clark, 1 Ind. App. Ct. 182. 27 N. E. trv v. Eelley, 49 Kan. 88, 30 Pac. 
 
 Rep 810 : Gentrj v. Kellej . 19 Kan. Rep. 186. 
 
 10 Pac. Rep 186; Gardora v. ' Miller v. Hanley, 94 Mich. 253, 58 
 
 Woodward, II Kan. 758,25 Pac. Rep. N. W. Rep. 962. 
 l'.i'.i ; Blankenship & B. Co. v. Willis,
 
 § 280 DECLARATIONS Of CO-CONSPIRATORS. 
 
 False recitals of consideration tend to deceive creditors 
 and are badges of fraud. 1 But the general subject of 
 consideration has been elsewhere considered - 
 
 £280. Declarations of co-conspirators — Where it is proved 
 that the debtor and others have joined in a conspiracy to 
 defraud creditors by a fraudulent disposition of property, 
 the acts and declarations of either of the parties, made in 
 the execution of the common purpose, and in aid of its 
 fulfilment, are competent evidence against any of the 
 parties. 3 Nor is it of consequence that the particular 
 declarations under consideration were in reference merely 
 to proposed acts of fraud which may not have been con- 
 summated in the particulars proposed, if such proposed 
 acts were sui generis with those committed. A founda- 
 tion must first be laid, by proof sufficient to establish 
 prima facie the fact of the conspiracy alleged in the com- 
 plaint. 4 That being done, every declaration of the par- 
 ticipants in reference to the common object is admissible 
 in evidence. 5 It makes no difference at what time the 
 defendant joins the conspiracy. 6 Every one who enters 
 into a common design is generally deemed in law a party 
 to every act which has before been done by the others, in 
 furtherance of the common design ; and this rule extends 
 
 1 De Walt v. Doran, 21 Dist. Col. Richards Co., 10 Ind. App. 76, 31 N. 
 1(33. E. Rep. 362 ; Dodge v. Goodell, 16 R. 
 
 2 See §§ 207-223. I. 48, 12 Atl. Rep. 336; Knowerv. 
 
 3 Dewey v. Moyer. 72 N, Y. 79, 80, Caddea Clothing Co., 57 < !onn. 202, 1*3 
 See Newlin v. Lyon, 49 N. Y. 061 : Atl. Rep. 580; Little v. Lichkoff. 98 
 Cujler v. McCartney, 40 N. Y. 221, Ala. 321, 12 So. Rep. 429. See Kelley 
 per Woodruff, J.; Tedrowe v. Esher, v. People, 55 N. Y. 565. 
 
 56 Ind. 445; Sherman v. Hogland, 73 4 Rutherford v. Schattman, 118 N. 
 
 Ind. 472; Stewart v. Johnson, 18 N. Y. 604, 23 X. E. Rep. 440, 
 
 J. Law 87 : Lee v. Lamprey, 43 N. H. » Moore v. Shields, 121 Ind. -JUT, 23 
 
 13 ; Kennedy v. Divine, 77 Ind. 493 : N. E. Rep. 89. 
 
 Adams v. Davidson, 10 N. Y. 309 ; N. 6 Dodge v. Goodell, 16 R. I 50, 12 
 
 Y. Guaranty & Ind. Co. v. Gleason, Atl. Rep. 236; Lincoln v. Claflin, 1 
 
 78 N. Y. 503 ; Daniels v. McGinnis, 97 Wall. 132. 
 
 Ind. 552 ; Benjamin v. McElwaine-
 
 
 !•!• LAF \TF< iNS I »F a >-C< INSPIRATORS. 
 
 §280 
 
 to declarations. 1 The statements of one of the co-con- 
 spirators, however, as to past transactions not connected 
 with or in furtherance of the enterprise under investi- 
 gation, are not competent.' 
 
 In case of conspiracy where the combination is proved, 
 the acts and declarations of the conspirators are not 
 received as evidence of that fact, but only to show what 
 was done, the means employed, the particular design in 
 respect to the parties to be affected or wronged, and gen- 
 erally those details which, assuming the combination and 
 the illegal purpose, unfold its extent and scope, and its 
 influence either upon the public or the individuals who 
 suffer from the wrong, or show the execution of the illegal 
 design. But when the only issue is whether there was a 
 conspiracy to defraud, these declarations do not become 
 evidence to establish it. :i The court may, in its discretion, 
 receive the declaration first and the evidence of connec- 
 tion subsequently, 4 though it is conceded that the rule 
 calling for preliminary proof should not be departed from 
 except under particular and urgent circumstances. It has 
 
 1 Tyler v. Angevine, 15 Blatchf. 
 541,1 Greenleafs Ev. §111. 
 
 N. y.Guar. & End. Co. v. Gleason, 
 78 X. Y. 503. See .Johnston v. Thomp- 
 son, 23 Bun (N, Y.) 90; Baptisl 
 Church v Brooklyn I'. I. Co., 28 N. 
 Y. 153 ; Cortland Co. v. Berkimer Co. , 
 H N Y. 22 
 
 Woodruff, J., in Cuyler v. McCar- 
 
 ney, W N. Y 229 . Boyd v. .1 s. <i0 
 
 Mr.. 454 . N Y. Guaranty & End. Co. 
 v Gleason, 7 ALL. N. < !. (N. Y.) :;:;( ; 
 
 Kei ly v I >i vine. 77 End. 49 '<■ In 
 
 Winchester .\ Partridge Mfg. Co. v. 
 Creary, in; D. 8. 166, 6 S. C Etep. 
 869, the <■' «ii it Baid : " Without ex- 
 tending this opinion bj a review of 
 tin' adjudged cases in which there 
 was proof of a concerl or collusion 
 between vendor and vendee to de- 
 fraud creditors, and in which subse- 
 
 quent declarations of the vendor were 
 offered in evidence against the vendee 
 to prove the true character of the 
 sale, it is sufficient to say that such 
 declarations are not admissible 
 against the vendee, unless the alleged 
 common purpose to defraud is first 
 established hy independent evidence, 
 ami unless they have such relation to 
 the execution of that purpose that 
 they fairly constitute ;i part of the 
 res gestae. There was no such inde- 
 pendent evidence in this case, and 
 there is no foundation for the charge 
 of a conspiracy between the vendors 
 and vendee to hinder creditors, out- 
 side of certain statements which 
 Welili is alleged to have made after 
 his linn had parted w if h the title and 
 surrendered possession."' 
 
 4 Place \ Minster, 65 N. Y. 80.
 
 § 28l PROOF OF CIRCUMSTANCES. \gj 
 
 been said that the testimony of one witness is enough to 
 let in the acts and declarations of a wrong-doer, and that 
 the court will not decide upon the question of his cred- 
 ibility ; * and in Pennsylvania the rule seems to prevail 
 that the least degree of concert or collusion between 
 parties to an illegal transaction makes the act of one the 
 act of all. 2 
 
 §281. Proof of circumstances. — In litigations of the 
 class under consideration, great latitude should undoubt- 
 edly be allowed in regard to the admission of circum- 
 stantial evidence, 3 for the purpose of proving participa- 
 tion in manifest fraud. 4 Objections to testimony as 
 irrelevant are not favored in such cases, since the force of 
 circumstances depends so much upon their number and 
 connection. 5 The evidence should be permitted to take 
 a wide range, as in most cases fraud is predicated of cir- 
 cumstances, and not upon direct proof. 6 Proof is said to 
 establish the truth, and circumstantial evidence to lead 
 toward it ; hence any pertinent and legitimate facts, con- 
 ducing to the proof of a litigated issue, constitute evi- 
 dence of the disputed fact, stronger or weaker, according 
 to the entire character and complexion of it, or as affected 
 by conflicting evidence. 7 Though the evidence to prove 
 fraud may be circumstantial and presumptive, it "must be 
 
 1 Abney v. Kingsland, 10 Ala. 355, 37 Minn. 218, 34 N. W. Rep. 21; 
 361. Brittain v. Crowther, 54 Fed. Rep. 
 
 2 Confer v. McNeal, 74 Pa. St. 115; 295: Reynolds v. Gawthrop's Heirs, 
 Gibbs v. Neely, 7 Watts (Pa.) 307; 37 W. Va. 3, 16 8. E. Rep. 364 See 
 Rogers v. Hall, 4 Watts (Pa.) 361; § 13: Engraham v. Pate, 51 Ga. 587. 
 McDowell v. Rissell, 37 Pa. St. 164 ; 6 Sarle v. Arnold, 7 R. I. 586 : ( lastle 
 Hartman v. Oilier. 62 Pa. St. 37. v. Billiard. 23 How. 187. 
 
 3 Schumacher v. Bell, 164 111. 184, 6 Ferris v. Irons, 83 Pa. St lvj. 
 45 N. E. Rep. 428. See Wright v. Linn, L6 Tex. 84 ; Laird 
 
 4 Curtis v. Moore, 20 Md. 96 ; Shealy v. Davidson, 124 End. 412, 25 N. E. 
 v. Edwards, 75 Ala. 416 ; Nicolay v. Rep. 7; Hinton \. Greenleaf, lis N. 
 Mallery, 62 Minn. 121, 64 N. W. Rep. C. 7, 23 S. E. Rep. 924 
 
 108 ; O'Donnell v. Hall, 157 Mass. 463, 'Miles v. Edelen, 1 Duv. (Ky.) 
 
 32 N. E. Rep. 666; Allen v. Fortier, 270. 
 
 32
 
 498 PROOF "I CIRCUMSTANCES. § 28 1 
 
 strong and cogent, such as to satisfy a man of sound 
 judgment of the truth of the allegation." ■ But the alle- 
 gation of fraud in a civil action need not, like the charge 
 of crime, be proved by evidence excluding all reasonable 
 doubt ; a preponderance of evidence will suffice. 2 But in 
 order to justify a finding of fraud, the inference to be 
 drawn from the circumstances relied on must not only be 
 consistent with the fraudulent acts charged, but incon- 
 sistent with honesty and good faith. 3 So it is not error 
 to refuse to charge a jury that "they must be satisfied 
 from the clearest and most satisfactory evidence," since it 
 is the province of the jury to weigh the evidence. 4 "Cir- 
 cumstantial evidence," said Bradley, J., " is not only suffi- 
 cient, but in most cases it is the only proof that can be 
 adduced." 5 Often other things which cro to characterize 
 a transaction are more convincing than the positive 
 evidence of any single witness, especially of an interested 
 witness. 6 The only true test is whether the evidence can 
 throw light on the transaction, or whether it is totally 
 irrelevant. 7 It is the duty of the court, however, to see 
 that such evidence has at least a natural and reasonable 
 tendency to sustain the allegations in support of which it 
 is introduced ; that it is of such a character as to warrant 
 an inference of the fact to be proved, and amounts to 
 something more than a mere basis for conjecture or 
 
 Henry v. Henry, 8 Barb. (N. Y. I Mass. 275, 876; White v. Perry, 14 W. 
 
 Va. 66; Butler v. Watkins, 13 Wall. 
 
 Strader v. Mullane, 17 Ohio St . 456; Armstrong v. Lachman, 84 Va. 
 
 626 726, 6 S. K. Rep. L29; Saunders v. 
 
 - Blish \ CoMns, 68 Mich. 542, 3(5 Parrish, 86 Va. 592, 10 S. E. Rep. 748. 
 
 N W\ Rep. 781. "Molitor v. Robinson, 40 Mich. 202. 
 
 1 Painter v. Drum, 40 Pa. St. 467. Sec Blue v. Penniston, 27 Mo. 274. 
 
 Rea « Missouri, 17 Wall. 543. 'Heath v. Page. 63 Pa. St. 108-126, 
 
 ookev Cooke, 43 Md. 525 ; King and cases cited. See Stewart v. Fen- 
 
 \. Poole. 61 <;.i :;Tl ; Sarle v. Arnold, ner, 81 Pa. St. 177; Booth v. Bunce, 
 
 • R- I r >85; Castle v. Bullard, 23 33 N. Y. 159 ; Gollobitsch v. Rainbow, 
 
 Bow. 181 Winchester v. Charter, 102 84 Iowa 567, 51 X. W. Rep. 48.
 
 §281 
 
 PROOF OF CIRCUMSTANCES. 
 
 I.99 
 
 vague speculation. 1 Evidence may be legally admissible 
 as tending to prove a particular fact which by itself is 
 utterly insufficient for that purpose. " It may be a link 
 in the chain, but it cannot make a chain unless other 
 links are added." 2 So in England it is settled that the 
 preliminary question of law for thexourt is not whether 
 there is absolutely no evidence, but whether there is none 
 that ought reasonably to satisfy the jury that the fact 
 sought to be proved is established. If there is evidence 
 on which the jury can properly find for the party on 
 whom the onus of proof lies, it should be submitted ; if 
 not, it should be withdrawn from the jury. 3 
 
 Greater latitude is undoubtedly allowable in the cross- 
 examination of a party who places himself upon the stand 
 than in that of other witnesses. 4 The cross-examination 
 of a witness not a party is usually confined within the 
 scope of the direct examination. 5 Then again proof of 
 
 1 Battles v. Laudenslager, 84 Pa. 
 St. 451. 
 
 2 Howard Express Co. v. Wile, 64 
 Pa. St. 206. 
 
 Latitude of the inquiry. — In Balti- 
 more & Ohio R. R. Co. v. Hoge, 34 
 Pa. St. 221, Thompson, J., said : " It 
 is a great error, generally insisted on 
 by defendants, in cases involving 
 questions of fraud, that each item of 
 testimony is to be tested by its own 
 individual intrinsic force, without 
 reference to anything else in the case ; 
 and if on such a test it does not prove 
 fraud, it must be excluded. The 
 system of destroying in detail forces 
 designed for concentrated action does 
 well, doubtless, in military opera- 
 tions ; but a skillful general never 
 suffers such a disastrous result, except 
 when he cannot prevent it. Courts 
 have the power, and must prevenl 
 such a system of assault, otherwise 
 fraud would ever be victorious. It is 
 
 a subtle element, and is to be traced 
 out, if at all, by the small indices dis- 
 coverable by the wayside where it 
 travels : and to enable courts and 
 juries to detect it, they must in most 
 cases aggregate many small items, 
 before the true features of it are dis- 
 cernible. Hence it is that great 
 latitude in the investigation is a rule 
 never departed from in such cases. 
 This rule is elementary, and a cita- 
 tion of authorities to prove it would 
 not only be useless, but superfluous." 
 
 3 Ryder v. Wombwell, L. R. 4 
 Exch. 39; Jewell v. Parr, 13 C. B. 
 916. 
 
 4 Rea v. Missouri, 17 Wall. 542; 
 Cox v. Einspahr, 40 Neb. 411, 58N. 
 W. Rep. 941 ; Riddell v. Munro, (9 
 Minn. 532, 52 N. W. Rep. 141. 
 
 5 Rea v. Missouri, IT Wall. 542; 
 Johnston v. Jones, 1 Black 216 ; 
 Teese v. Huntingdon. 23 How. 'J.
 
 50O PROOF OF CIRCUMSTANCES. § 281 
 
 collateral facts tending to show a fraudulent intention is 
 held to be admissible whenever a fraudulent intention is 
 to be established. 1 The fact that at the time of the sale 
 suits were pending against the debtor, or that he was 
 apprehensive that suits would be commenced, and also his 
 general pecuniary condition, or that the parties are rela- 
 tives, 2 or the security larger than the debt, 3 are matters 
 which the creditor should be permitted to show. 4 A 
 promise not to disclose the existence of a mortgage is 
 evidence of fraud. 5 
 
 The maxim " omnia prasumuntur contra spoliatorem" 
 is frequently invoked by creditors in cases where the 
 debtor or those acting in collusion with him have spirited 
 away witnesses, 6 or altered, destroyed, or suppressed 
 documents. 7 And curiously enough the maxim " De 
 minimus non curat lex" has been applied where the sum 
 claimed to have been misappropriated by the debtor 
 was insignificant in value or amount. 8 
 
 We have already glanced at the effect of inadequacy of 
 consideration, 9 and have seen that it may be so gross as 
 to shock the conscience and furnish decisive evidence of 
 fraud. 10 In an Oregon case this language occurs: ''The 
 fact that one person has obtained the property of another, 
 under a form of purchase, without having paid any con- 
 sideration therefor, and with a design of acquiring it for 
 
 United Slates v. 36 Barrels of 7 See Wardour v. Berisford. 1 Vera. 
 
 High Wines, ? Blatchf. 474; Wood 452; Attorney-General v. Dean of 
 
 \. United States, 16 Bet. 342-361. Windsor, 24 Beav. 679: Armory v. 
 
 Beeves v. Skipper, 94 Ala. 107, 10 Delamirie, 1 Stra. 505. Compare 
 
 So Rep. 309. Stateof Michigan v. Phoenix Bank, 33 
 
 'Kellogg \. dyne. :,; Fed. Rep. N. Y. '.). Hut we cannot outer this 
 
 696 wide field See is Am. Law Rev. 
 
 Barrel] v. Mitchell, 61 Ala. 278. 185. 
 
 Bee Chap XVI. -Crook v. Rindskopf, l0.-> N. Y. 
 
 Wafer n. ll.nvey County Bank, 484, 12 N. E. Rep. 174. 
 
 16 Kan. 597, 26 Pac Rep. 1032. 'See .: 282. A.rcher \. Lapp, 12 
 
 ■ See Kirbj v. Talhnadge, 160 U. S. Ore. 202. 6 Pac. Rep. 672. 
 
 '" See Pomeroy's Eq/Jur., § 927.
 
 § 282 I >THER FRAUDS. 501 
 
 nothing, js fraudulent in itself. 1 It is error for the court 
 to direct the jury as to what weight shall be given to 
 particular items of the testimony. 2 
 
 §282. Other frauds. — It is competent, in order to estab- 
 lish the fraudulent intent of the debtor, to give proof of 
 other fraudulent sales 8 effected about the same time, 4 
 and of his proposals to make other covinous alienations 
 together with his statements and declarations showing 
 such intent. 5 Johnson, J., said : 6 " In actions involving 
 questions of fraud, the intent is always a material inquiry, 
 and for the purpose of establishing that, other acts of a 
 similar character, about the same time, may always be 
 shown." 7 This is especially the rule where there is any 
 relation or connection between the different transac- 
 tions, 8 or they form any part of a connected scheme to 
 defraud. 9 When the motives and intent of the parties 
 to an act become material, they may be shown by separate 
 and independent acts and declarations accompanying or 
 preceding the act in question. How far back such proof 
 may extend must depend upon the nature and circum- 
 stances of each particular case, and no positive rule can 
 
 'Archer v. Lapp, 12 Ore. 202, 6 Brayton, 38 N. Y. 198 ; Withrcra v. 
 
 Pac. Rep. 672. Biggerstaff, 87 N. C. 17<i. 
 
 2 First National Bank v. Lowrey, \msden v. Manchester, 40 Barb. 
 36 Neb. 290, 54 N. W. Rep. 568. (N. Y.) 16;!. Proof of other indebted- 
 
 3 Compare Trumbull v. Hewitt, 65 ness on the part of the debtor is 
 Conn. 60, 31 Atl. Rep. 492. admissible on the question of intent. 
 
 4 Benerlien v. O'Leary, 149 N. Y. Ross v. Wellman, 102 Cal. 1, 36 Pac. 
 38, 43 N. E. Rep. 417 ; Gary v. Rep. 402. 
 
 Hotailing, 1 Hill (N. Y.) 311. See80 '• Warren v. Williams. 52 Me. 846; 
 
 N. Y. 374 n. Flagg v. Willington, »'. Me. 386. 
 
 6 Pomeroy v. Bailey, 43 N. H. 125. Evidence that the grantee had been 
 
 and cases cited; Blake v. White, 13 engaged in other fraudulent transac- 
 
 N. H. 267; Pierce v. Hoffman, 24 Vt. tions, entirely distinct from the our 
 
 527 ; Beuerlein v. O'Leary, 149 N. Y. under consideration, is not admissible. 
 
 33; Spaulding v. Keyesf 125 N. Y. Kaufer v. Walsh, 88 Wis. 68, 59 V 
 
 113, 26 N. E Rep. 15. Butsee Staples W. Rep. 460. 
 
 v. Smith, 48 Me. 470 ; Huntzinger v. B Erfort v. Consalns, IT Mo. 212. 
 
 Harper, 44 Pa. St. 204 ; McCabe v. 'Smith v. Schwed, 9 Fed. Rep. 
 
 483; Clarke v. White. 12 Pet. 193.
 
 5<32 SUSPICIONS INSUFFICIENT. § 283 
 
 be laid down. In the case of fraudulent conveyances the 
 proof will usually be limited to similar acts occurring 
 about the same time. 1 Other conveyances tending to 
 strip the debtor of his property may be proved. 2 
 
 It has been considered, however, not competent for a 
 party imputing fraud to another to offer evidence to 
 prove that the other dealt fraudulently at other times and 
 in transactions wholly disconnected with the one under 
 consideration. 3 It is believed that such testimony would 
 tend to prejudice the minds of the jury by impeaching 
 the general character of the party charged with the fraud, 
 when he had no right to expect such an attack, and could 
 not be prepared to defend himself, however unimpeach- 
 able his conduct might have been. 4 
 
 § 283. Suspicions insufficient. — Mere suspicion of the 
 existence of fraud, as we have said, 5 is not sufficient to 
 establish its existence, but it must be clearly and satis- 
 factorily shown. 6 The evidence must convince the 
 understanding that the transaction was entered into for a 
 purpose prohibited by law. 7 Tangible facts must be 
 adduced from which a legitimate inference of a fraudulent 
 intent can be drawn. 8 Again circumstances amounting 
 
 1 Pomeroy v. Bailey, 43 N. H. 125 : Petersen v. Schroeder, 75 Wis. 571, 44 
 
 Bernheim v. Dibrell, 66 Miss. 199, 5 N.W. Rep. 652; McEvony v. Rowland, 
 
 So. Rep. 693. 43 Neb. 98, 01 N. W. Rep. 124. See 
 
 • Boffnian v. Eenderson (Ind. §§5,6. 
 
 L896) II X. E. Rep. 629. " In actions for false representations 
 
 Seating v. Retan, SO Mich. 324, there must be representation, falsity, 
 
 45N. W. Rep 111. scienter, deception and injury. Ar- 
 
 'Siiims v. Skinner, HI Mass. 360 ; thur v. Griswold, 55 N. Y. 400; Brack- 
 Grant v. Libby.71 Me. 430. As t<. ett v. Griswold, 112 N. Y. 467. 20 N. 
 when false statements to a commer- E Rep. 376; Wheadon v. Hunting- 
 cial agency as to assets and liabilities ton, 83 Hun (N. V.) 372, 31 N. Y. 
 ina\ in- -how n, see Treusch v. <)t- Snpp. 912. 
 tenburg 54 I • I Rep. 867. ' Pratt v. Pratt, 96 111. 184. 
 
 Sherman v. Bogland, 73 Intl. B Sherman v. Hogland, 73 Ind. 
 
 173 . I l.-.rk v. Krause. 12 Mackej 1 D. C.) 177 ; Jaeger v. Kelley, 52 N. Y. 274. 
 
 Jaeger v. Kelley, 52 X. V. 274; See Chap. XVI. 
 Ridge \. Grieswell, 53 Mo. A.pp. 479;
 
 §28 4 
 
 PROVING \ A I i l . 
 
 503 
 
 to a suspicion of fraud are not to be deemed notice of it, 
 and where an inference of notice is to affect an innocent 
 purchaser, it must appear that the inquiry suggested would 
 have resulted, if fairly pursued, in the discovery of the 
 defect or fraud. 1 The transaction will not be overturned 
 even though the court finds " that there is ground of 
 suspicion." 2 
 
 § 284. Proving value. — As we have seen, the value of 
 the assigned property is always important in the question 
 of fraud. 3 Experts may be called to prove value. In 
 Bristol Co. Savings Bank v. Keavy, 4 the witness was a 
 real estate broker and auctioneer, and was accustomed 
 to sell and value lands in various parts of the city in 
 which the property was located, and had appraised land 
 on the street where the premises were situated. He was 
 held to be plainly qualified to testify as to the value of 
 the land. 
 
 1 Simnis v. Morse, 4 Hughes 583. 
 See Ledyard v. Butler, 9 Paige (N. Y.) 
 132. 
 
 • ! Parker v. Phetteplace, 1 Wall. 
 683. Mr Jenks, the learned counsel 
 for the creditor in this action, relied 
 largely upon the suspicious circum- 
 stances in evidence, and urged that 
 proof of a covenant to commit the 
 fraud could not be adduced, nor even 
 proof of words. Some of the greatest 
 crimes which power has ever com- 
 manded have been consummated 
 without a word of direct instruction. 
 The learned reporter, in a note to this 
 case, aptly quotes from King John, 
 Act III, Scene III : 
 
 King John. .... 
 
 " Hear me without thine ears, and make 
 
 reply 
 Without a tongue, using conceit alone, 
 Without eyes, ears, and harmful sound of 
 
 words ; 
 Then, in despite of broad-eyed watchful day, 
 I would into thy bosom pour my thoughts ; 
 
 Hut ah, I will not : — 
 
 Dost thou understand me? 
 Thou art his keeper. 
 Hubert. And I will keep him so. 
 
 That he shall not offend your majesty." 
 
 Again, after the murder, 
 Scene II. : 
 
 Act IV. 
 
 King John . .... 
 " Hadst thou but shook thy head or made R 
 
 pause, 
 When I spake darkly what I purposed ; 
 Or turn'd an eye of doubt upon my lace. 
 As bid me tell my tale in express words ; 
 Deep shame had struck me dumb, made me 
 
 break off, 
 And those tny fears might have wrought 
 
 fears in me : 
 But thou didst understand cue by my signs. 
 And didst in signs again parley with sin, 
 Yea, without stop, didst let thy heart consent. 
 And, consequently, thy rude hand to act 
 The deed which both our tongues held vile to 
 
 name. — " 
 
 3 Stacy v. Deshaw, i Bun (N. Y.) 
 451. See §§23, 41. 
 
 4 128 Mass. 303.
 
 504 RECITALS — TESTIMONY. §§2843,285 
 
 § 284a. Recitals in deed. --The recitals in a deed are 
 
 manifestly not conclusive against creditors attacking the 
 
 deed. 1 Any different rule would be destructive of the 
 rights of creditors. 
 
 § 285. Testimony must conform to pleadings. — 1 he com- 
 plainant will only be allowed to prove the truth of the 
 allegations contained in his bill. Evidence relating to 
 other matters will be excluded upon well-established 
 principles of pleading which require the complainant to 
 state the case upon which he seeks relief, to the end that 
 the court may learn from the pleading itself whether the 
 creditor is entitled to the relief prayed, and that the 
 defendant may be advised as to the matters against 
 which he is to defend. 2 Facts admitted in the pleading 
 cannot be contracted or varied by evidence. 
 
 1 De Farges v. Ryland. 87 Va. 404, v. First Nat, Bk., 84 N. Y. 420 ; South- 
 
 12 S. E. Rep. 805 ; Hubbard v. Allen, all v. Farisb, 85 Va. 410. 7 S. E. Rep. 
 
 59 Ala. 296. 534 ; Pusey v. Gardner, 21 W. Va. 
 
 - Parkhurst v. McGraw, 24 Miss. 476, 477; Bierne v. Ray, 37 W. Va. 
 
 139. See Truesdell v. Sarles, 104 N. 577, 16 S. E. Rep. 804. See § 140. 
 Y. 167, 10 N. E. Rep. 139 ; Soutbwick
 
 CHAPTER XIX. 
 
 DEFENSES. 
 
 § 286. As to defenses. 
 28G<x. Another action pending. 
 2865. Attacking judgment. 
 
 287. Laches — Estoppel. 
 
 288. ) 
 
 08 g r Lapse of time. 
 
 290. Discovery of the fraud. 
 
 291. Judge Blatchford's views. 
 
 292. Statute of limitations. 
 
 293. Limitations in equity. 
 293a. Statute of frauds. 
 
 § 294. Insolvency or bankruptcy dis- 
 charges. 
 395. Existing and subsequent cred- 
 itors. 
 
 29G. Sufficient property left — (iift 
 of land. 
 
 297. What sheriff must show against 
 stranger. 
 
 297a. Set-off. 
 
 297o. Attacking consideration. 
 
 297c. When controversies not sepa- 
 rable. 
 
 § 286. As to defenses. — The principal defenses interposed 
 in suits prosecuted to annul fraudulent transfers, as is 
 elsewhere shown, are, that the purchaser acquired the 
 title or property bona fide, without notice of or participa- 
 tion in the grantor's fraudulent intent, and that adequate 
 consideration was paid or given for it. The principles 
 and authorities governing these branches of our investi- 
 gation have been considered of sufficient moment to call 
 for treatment in separate chapters, 1 and need not be 
 again discussed, but there are certain lines of defense 
 common to this class of litigation which command at 
 least passing attention. It may be observed at the out- 
 set that the fact that forms of law have been pursued is 
 no protection in a court of equity, if the result aimed at 
 and reached, is a fraud. 2 The transaction must be judged 
 by its real character, rather than by the form and color 
 which the parties have seen fit to give it. 3 What cannot 
 
 1 See Chaps. XV, XXIV. a Quackenbos v. Saver, 62 N. Y. 346; 
 
 -Metropolitan Bank v. Durant, 22 Vreeland v. New Jersej Stone Co., 29 
 
 N. J. Eq. 35, 41. N. J. Eq. 190; Fiedler v. Damn, 60
 
 506 ANOTHER ACTION PENDING — LACHES. §§ 286a-287 
 
 be done directly cannot be done by indirection ; and 
 when fraud appears, the forms will be discarded and the 
 corrupt act exposed and punished. 1 
 
 It is not a fraud for a debtor to fail to plead the statute 
 of limitations, 2 and an abandonment by a debtor of a 
 technical defense is not a fraud on other creditors. 3 
 
 §286a. Another action pending. —The general and salu- 
 tary principle of procedure that no person shall be twice 
 vexed for the same cause, of course, applies to proceed- 
 ings instituted by creditors. Thus, in a case which arose 
 in Pennsylvania, where a creditor's bill was filed against 
 directors of an insolvent bank, charging mismanagement 
 of its affairs, and an assignee of the bank subsequently 
 brought an action at law, in the name of the bank, against 
 the directors for the. same cause, it was held that the 
 pendency of the bill was well pleaded in abatement in 
 the action at law. 4 
 
 §286b. Attacking judgment. —The judgment upon which 
 the creditor's bill is founded is conclusive against the 
 debtor. 5 Clear proof of fraud is required to impeach a 
 judgment on which a creditor's bill is based. 
 
 § 287. Laches — Estoppel. — We have elsewhere discussed 
 the cases relating to the sufficiency of pleas excusing 
 
 X. V. 440, where the rule is applied ' Buck v. Voreis, 89 Ind. 117. 
 to usurious transactions. Judgment- - Christie v. Bridgman, 51 N. J. Eq. 
 creditors are considered to be acting 333, 25 Atl. Rep. 939, 30 Id. 429 ; Shep- 
 iu privity with their debtor in attack- pard's Estate, 180 Pa. St. 61, 36 Atl. 
 ing or defending any usurious con- Rep. 422; Allen v. Smith. 129 U. S. 
 tract which he may have made. 465, 9 S. C. Rep. 338; French v. Mot- 
 Chandler v. Powers, 24 N. Y. Daily ley, 63 Me. 326. 
 Reg., p. 1201 (Dec. 28, 1883). SeeMer- 8 Inglehart v. Thousand Island 
 chants' Exch. Nat. Bk. v. Commercial Hotel Co., 109 N. Y. 454, 17 N. E. 
 Warehouse Co., 49 N. Y. 642, and Rep. 358. 
 
 QOte. tt seems thai it is not a fraud 4 Warner v. Hopkins, 111 Pa. St. 
 
 upon creditors for a debtor or as- 328. 
 
 signor to provide for the payment of 6 See§74. 
 
 a usurious debt. See Chapin v. Thomp- 'Walters v. Walters, 28 111. App. 
 
 son, B9 N. Y. 371 ; Murray v. Judson, 633. 
 9 N X". 78
 
 §287 LACHES — ESTOPPEL. 507 
 
 apparent laches in filing a bill to annul a fraudulent 
 transfer. 1 Endeavoring to avoid unnecessary repetition, 
 let us recur to the subject of laches considered as a 
 defense or bar to a suit. " Courts of equity do not 
 impute laches by an iron rule. Circumstances are 
 allowed to govern every case." ~ It may be asserted at 
 the outset that equity will not be moved to set aside 
 a fraudulent transaction at the suit of one who, after he 
 had knowledge of the fraud, or after he was put upon 
 inquiry, with the means of knowledge accessible to him, 
 has been quiescent during a period longer than that fixed 
 by the statute of limitations. 3 He must have used 
 reasonable diligence to inform himself of the facts. 4 
 A stale and uncertain demand, as, for instance, a bill filed 
 to set aside an alleged fraudulent conveyance nineteen 
 years old, should not be allowed in a court of equity:' 
 The rule is peculiarly applicable where the difficulty of 
 doing entire justice arises through the death of the prin- 
 cipal participants in the transactions complained of, or of 
 the witnesses. 6 In Eigleberger v. Kibler, 7 it appeared 
 that the complainant had permitted the conveyance in 
 question to stand for nearly ten years, during which 
 period many valuable improvements had been made by 
 the grantee, and the creditor had also suffered other 
 creditors, junior in date to him, to acquire prior liens, and 
 
 1 See §§148,149. See Cedar Rapids ' Foster v. Mansfield C. &. L. M. R. 
 Ins. Co. v. Butler, 83 la. 124, 48 N. \V. R. Co., 146 U. S. 88, 13 S. ('. Re] 
 Rep. 1026. Halstead v. Grinnan, 152 U. S. 117. 14 
 
 2 Waterman v. Sprague Manuf. S. C. Rep. 641; PearsaU v. Smith. 149 
 Co., 55 Conn. 574. U. S. 231, 13 S. C. Rep. 833 
 
 Ita 3 Burke v. Smith, 16 Wall. 401. B Dominguez v. Dominguez, 7 Cal. 
 
 Compare Meader v. Norton, 11 Wall. 424. 
 
 443 ; Trenton Banking Co v. Duncan, 'Hammond v. Hopkins. 1481 . S 
 
 86 N. Y. 221 ; Halstead v. Grinnan, 224, 12 S. C. Rep. 418. 
 
 152 U. S. 412, 14 S. C. Rep. 641; 7 1 Hill's Ch. (S. (.) 113, 20 Am. 
 
 Hathaway v. Noble, 55 N. H. 508 ; Dec. 192. 
 
 Higgins v. Crouse, 63 Hun (N. Y.) 
 
 139. 17 N. Y. Supp. 696.
 
 508 LACHES — ESTOPPEL. §287 
 
 thus consume the estate of the debtor. Upon this state 
 of facts, the court very properly decided that the creditor, 
 having by his supineness allowed the fund to be taken 
 away, could not subsequently be permitted to make his 
 own laches aground of injury to another. Fifteen years' 
 delay was considered fatal in Norris v. Haggin. 1 So it 
 has been considered an important element that the trans 
 actions out of which the suit arose commenced about thir- 
 teen years before any attempt was made toward impeach- 
 ment, and no efforts at concealment or secrecy were 
 shown. 2 "After such delay," said Chief-Justice Waite, 
 " we are not inclined to set aside what has been permitted 
 to remain so long undisturbed, simply because of an 
 inability to explain, with exact certainty, from what pre- 
 cise source the money came, which went into the purchase 
 of each particular parcel of property." 3 A delay of twenty 
 years was deemed fatal in New Jersey. 4 
 
 Chancellor Kent said, upon this subject : 5 '' There is 
 no principle better established in this court, nor one 
 founded on more solid considerations of equity and pub- 
 lic utility, than that which declares that if one man, 
 knowingly, though he does it passively, by looking on, 
 suffers another to purchase and expend money on land, 
 under an erroneous opinion of title, without making 
 known his claim, he shall not afterwards be permitted to 
 exercise his legal right against such person. It would be 
 an act of fraud and injustice, and his conscience is bound 
 
 136 r. 8. 386, 10 S. C. Rep. 942. J Frenche v. Kitchen, 53 N. J. Eq. 
 
 Compare Foster v. Mansfield, C. & L. 37, 30 All. Rep. 815. 
 
 M. I: R. Co., L46 U. 8. 88, 13 S. C. s Wendell v. Van Rensselaer, 1 
 
 Rep 88; Leggett v. Standard Oil Co., Johns. Ch. (N. V.) 354. In Corbitt 
 
 149 r. s. 394, 18 8. C. Rep. 903. v. Cutoheon, 79 Mich. 41, 44 N. W. 
 
 1 Aldridge \ Muirhead, 101 U. S. Rep. 163, it was held that mere acqui- 
 
 401. escence by taking no present measure 
 
 Udridge v. Stairhead, 101 U.S. Lb not enough to prevent afterwards 
 
 403. See Norria v. Eaggin, 130 U. 8. the bringing of an action, in the ab- 
 
 s C. Rep. 942. Bence of facts upon which an estoppel 
 
 could be predicated.
 
 <J 288 I ^PSE OF 'II Ml . 509 
 
 by this equitable estoppel." 1 The Court of Appeals of 
 New York could "see no reason why the same principle 
 should not protect creditors, who have given credit upon 
 the faith of the apparent ownership of property in pos- 
 session of the debtor, against a secret unrecorded con- 
 veyance, fraudulently concealed by the grantee ; as when, 
 with knowledge that the debtor is holding himself out as 
 owner, and is gaining credit upon this ground, he keeps 
 silence, giving no sign." 1 But in this latter case the 
 creditor's suit failed because of his laches in not examin- 
 ing the record, and because of a lack of evidence of 
 knowledge of circumstances which called upon the 
 defendant to record his deed. Of course, if the creditor, 
 with full knowledge of the fact which constitutes the 
 fraud, assents to it, he cannot attack the conveyance, 
 and he cannot, by making a colorable assignment of his 
 claim, invest another with the right to attack the convey- 
 ance. But if he buys a claim from another creditor who 
 had no knowledge of the fraud, he succeeds to all the 
 rights of such creditor and can maintain a bill to set the 
 conveyance aside. 3 
 
 § 288. Lapse of time. — The general principle of equity 
 jurisprudence that lapse of time, independent of limita- 
 tions or simple laches, may constitute a defense to a suit, 
 is ably considered by McCrary, J., in United States v. 
 Beebee, 4 in an action brought to annul fraudulent 
 
 'Laches and limitations apply to Given, 8 Johng. (N.Y.) 1S7; Alexander 
 
 municipal corporations and county v. Pendleton, 8 Cranch 162. 
 commissioners. Boone Co. v. Burling- 4 17 Fed. Rep. 37; Laughlin v. 
 
 ton & M. R. R. Co., 139 U. S. 693, 11 Calumet & Chicago Canal & Dock 
 
 S. C. Rep. 687. Co., 13 C. C. A. 1. 65 Fed. Rep ill. 
 
 2 Trenton Banking Co. v. Duncan. It is nol easy to define whal consti- 
 86 N. Y. 229; Randolph's Ex'r v. tutes a stale equity; length of time 
 QuidnickCo., 135 U. S. 457, 10 S. C. alone is not the test; the question 
 Rep. 655. must be determined by the facts and 
 
 3 Johnson v. Rogers, 15 N. B. K. I, circumstances of each case, and ac 
 13 Fed. Cas. 795. See Jackson v. cording to the natural principles of
 
 510 LAPSE OF TIME. §288 
 
 patents. The court says in substance that the authorities 
 support the proposition that lapse of time may be a good 
 defense in equity, independently of any statute of limita- 
 tions, and it shows that the doctrine rests not alone upon 
 laches ; it is often put upon one or all of the following 
 grounds, namely : First, that courts of equity must, for 
 the peace of society, and upon grounds of public policy, 
 discourage stale demands by refusing to entertain them ; 
 second, that lapse of time will, if long enough, be regarded 
 as evidence against the stale claim, equal to that of 
 credible witnesses, and which, beinc: disregarded, would in 
 a majority of cases lead to unjust judgments ; third, that 
 after the witnesses who had personal knowledge of the 
 facts have all passed away, it is impossible to ascertain 
 the facts, and courts of equity will, on this ground, refuse 
 to undertake such a task. Thus Mr. Justice Story says: 
 " A defense peculiar to courts of equity is founded upon 
 the mere lapse of time, and the staleness of the claim, in 
 cases where no statute of limitations directly governs the 
 case. In such cases, courts of equity act sometimes by 
 analogy to the law, and sometimes act upon their own 
 inherent doctrine of discouraging, for the peace of 
 society, antiquated demands, by refusing to interfere 
 when there has been gross laches in prosecuting rights, 
 or long and unreasonable acquiescence in the assertion of 
 adverse rights." 1 And in Maxwell v. Kennedy, 2 the 
 Supreme Court of the United States, in answer to the 
 argument that there was no statute of limitations applica- 
 ble to the case at bar, said : " We think the lapse of time, 
 upon the facts stated in the bill and exhibits, is, upon 
 principles of equity, a bar to the relief prayed, without 
 reference to the direct bar of a statute of limitations." 
 Chief Justice Fuller says: "In all cases where actual 
 
 justice tfeppacb v. Jones, 20 Ore. l 2 Story's Eq., § 1520. 
 491, 26 Pac. Rep. 569, 849. • 8 How. 222.
 
 § 28o LAPSE OF TIME. 51 1 
 
 fraud is not made out, but the imputation rests upon con 
 jecture, where the seal of death lias closed the lips of 
 those whose character is involved, and lapse of time has 
 impaired the recollection of transactions and obscured 
 their details, the welfare of society demands the rigid 
 enforcement of the rule of diligence. The hour-glass 
 must supply the ravages of the scythe, and those who 
 have slept upon their rights must be remitted to the 
 repose from which they should not have been aroused." ' 
 
 § 289. — Again, in Clark v. Boorman's Executors, 2 the 
 same court observed : " Every principle of justice and 
 fair dealing, of the security of rights long recognized, of 
 repose of society, and the intelligent administration of 
 justice, forbids us to enter upon an inquiry into that 
 transaction forty years after it occurred, when all the 
 parties interested have lived and died without complain- 
 ing of it, upon the suggestion of a construction of the 
 will different from that held by the parties concerned, 
 and acquiesced in by them through all this time." In 
 Brown v. County of Buena Vista, 3 the doctrine is 
 expressed in these words : " The lapse of time carries 
 with it the memory and life of witnesses, the muni- 
 ments of evidence, and other means of proof. The rule 
 which gives it the effect prescribed is necessary to the 
 peace, repose, and welfare of society. A departure from 
 it would open an inlet to the evils intended to be 
 excluded." In Harwood v. Railroad Co. 4 the principle is 
 concisely and clearly stated thus : " Without reference 
 to any statute of limitations, the courts have adopted the 
 
 1 Hammond v. Hopkins, 143 U. S. S. 136, 7 S. C. Rep. 430; Phillips v. 
 224, 274, 12 S. C. Rep. 418. Negley, 117 U. S. 675, 6 S. < ' Rep. 901 : 
 
 2 18 Wall. 509. Abraham v. Ordway, 158 U. 8.416, 
 
 3 95 U. S. 161. See Emory v. Pal- 15 S. C. Rep. 891 ; Balsey v. Cheney, 
 mer, 107 U. S. 11 ; National Bank v. 68 Fed. Rep. 763. 
 
 Carpenter, 101 U. S. 568; Kirby v. * 17 Wall. 78, 81. 
 Lake Shore & M. S. R. R. Co.. 120 U.
 
 3,12 DISCOVERY OF THE FRAUD. § 290 
 
 principle that the delay which will defeat a recovery must 
 depend upon the particular circumstances of each case." 
 Lord Redesdale observed : "It is said that courts of 
 equity are not within the statute of limitations. This is 
 true in one respect ; they are not within the words of the 
 statutes, because the words apply to particular legal 
 remedies ; but they are within the spirit and meaning of the 
 statutes, and have always been so considered." J Import- 
 ant discussions of this general principle may be found in 
 Elmendorf v. Taylor 2 and Badger v. Badger. 3 In Boone 
 v. Childs 4 the rule is thus laid down : " A court of 
 chancery is said to act on its own rules in regard to stale 
 demands, and independent of the statute. It will refuse 
 to give relief where a party has long slept on his rights, 
 and where the possession of the property claimed has 
 been held in crood faith, without disturbance, and has 
 greatly increased in value." In Wilson v. Anthony, 5 cited 
 with approval by the Supreme Court of the United States 
 in Sullivan v. Portland & Kennebec Railroad Company, 6 
 the doctrine is well stated thus : " The chancellor refuses 
 to interfere after an unreasonable lapse of time from con- 
 siderations of public policy, and from the difficulty of 
 doing entire justice when the original transactions have 
 become obscured by time, and the evidence may be lost." 
 
 ^j 290. Discovery of the fraud.— It is a general rule that 
 where the party injured by the fraud remains in ignorance 
 of it, without any fault or want of care on his part, the 
 statute does not begin to run until the fraud is discovered 
 by, or becomes known to, the party suing, or those in 
 
 Hovenden v. Lord Annesley, 2 *94U. S. 311. And see Hume v. 
 
 Sch & Let 607. Beale, 17 Wall. 343 ; Ball v. Law, 102 
 
 10 Wheat. 172. U. S. 46!) ; Godden v. Kimmell, 99 0". 
 
 '■Vail 94 S. 210 ; Pusey v. Gardner, 21 W. Va. 
 
 1 10 Pel 481. 
 • 19 Ark. 16. See Gibson \ Ber 
 riott, 56 \rk. 98, L7 8. W. Rep 589.
 
 § 2 9 l 
 
 JUDGE BLATCHFORD'S VIEWS. 
 
 - « i 
 
 privity with him. 1 "To hold that by concealing a fraud," 
 says Miller, J., " or by committing a fraud in a manner thai 
 it concealed itself until such time as the party committing 
 the fraud could plead the statute of limitations to protect 
 it, is to make the law which was designed to prevent 
 fraud the means by which it is made successful and 
 secure." 2 This, as we have already shown, is a rule of 
 pleading, 3 as well as a matter of evidence or of defense. 
 The party defrauded must be diligent in inquiry. 4 
 
 § 291. Judge Blatchford's views. — This subject was ably 
 discussed in Tyler v. Angevine, 5 by Blatchford, J., while 
 a circuit judge. He said: "In suits in equity, the 
 decided weight of authority is in favor of the proposition, 
 that, where the party injured by the fraud remains in 
 ignorance of it without any fault or want of diligence or 
 care on his part, the bar of the statute does not begin to 
 run until the fraud is discovered, though there be no special 
 circumstances or efforts, on the part of the party commit- 
 ting the fraud, to conceal it from the knowledge of the 
 other party. 6 On the question as it arises in actions at 
 law, there is, in this country, a very decided conflict of 
 authority. Many of the courts hold that the rule is sustained 
 in courts of equity only on the ground that these courts 
 
 1 Upton v. McLaughlin, 105 U. S. 
 640 : Bailey v. Glover, 21 Wall. 349 ; 
 Gifford v. Helms, 98 U. S. 248 ; Erick- 
 son v. Quinn, 47 N. Y. 413 ; Richard- 
 son v. Mounce, 19 S. C. 477 ; Harrell 
 v. Kea, 37 S. C. 369, 16 S. E. Re].. 42 ; 
 Weaver v. Haviland. 68 Hun (N. V.) 
 376, 22 N. Y. Supp. 1012. 
 
 2 Bailey v. Glover, 21 Wall. 349, 
 mpra ; Kirby v. Lake Shore & M. S. 
 R. R. Co., 120 U. S. 136, 7 S. C. Rep. 
 430. 
 
 3 See §£ 148, 149. 
 
 4 Gillespie v. Cooper, 36 Neb. 786, 
 55 N. W. Rep. 302 ; Norris \. Haggin, 
 
 33 
 
 28 Fed. Rep. 275 ; O'Dell v. Burnbani, 
 fil Wis. 562, 21 N. W. Rep. 635 ; Kuhl- 
 iiKiu v. Baker, 50 Tex. 630; Co< 
 Lee, 75 Texas 111. 12 s. W. Rep. 188. 
 
 5 15 Blatch. 541. 
 
 6 Citing Booth v. Warrington, 1 
 Bro. P. C. 163 ; South Sea Co. v. 
 Wymcmdsell, :l 1'. Wins. 1 1:: ; Boven- 
 den v. Lord Aini^lrv, 3 Sch. <\ I .< 1 
 634; Stearns v. Page, 7 Bow. 819; 
 Moore v. Greene. 19 Bow. 'i'.i ; Sher- 
 wood \. Sutton, 5 Mason 143; Snod- 
 -niss v. Branch Bank of Decatur. 25 
 Ala. Mil.
 
 514 JUDGE BLATCHFORD S VIEWS. £291 
 
 are not bound by the mere force of the statute, as courts 
 of common law are, but only as they have adopted its prin- 
 ciple as expressing their own rule of applying the doctrine 
 of laches in analogous cases. They, therefore, make 
 concealed fraud an exception on purely equitable prin- 
 ciples. 1 On the other hand, the English courts, and the 
 courts of Connecticut, Massachusetts, Pennsylvania, and 
 others of great respectability, hold that the doctrine is 
 equally applicable to cases at law. 2 As the case before 
 us is a suit in equity, and as the bill contains a distinct 
 allegation that the defendants kept secret and con- 
 cealed from the parties interested the fraud which is 
 sought to be redressed, we might rest this case on what 
 we have said is the undisputed doctrine of the courts of 
 equity, but for the peculiar language of the statute we are 
 considering. We cannot say, in regard to this Act of 
 limitations, that courts of equity are not bound by its terms, 
 for its very words are, that no suit at law or in equity 
 shall in any case be maintained unless brought within two 
 years, etc. It is quite clear that this statute must be held 
 to apply equally, by its own force, to courts of equity and 
 to courts of law, and, if there be an exception to the 
 universality of its language, it must be one which applies, 
 under the same state of facts, to suits at law as well as to 
 
 suits in equity And we are also of opinion, that 
 
 this is founded in a sound and philosophical view of the 
 principles of the statute of limitations. They were enacted 
 to prevent frauds ; to prevent parties from asserting 
 rights after the lapse of time had destroyed or impaired 
 
 1 Citing Troup v. Smith, 20 Johns. & C. 149; First Mass. Turnpike Co. 
 
 : Callia v. Waddy, 2Munf. v. Field, 3Mass. 201 ; Welles v. Fish, 
 
 (Va.)511 : Miles v. Barry, 1 Bill's (S. 3 Pick. (Mass.) 75 ; Jones v. Conoway, 
 
 Law 296; York v. Bright, I I Xeates (Pa.) 109; Itusli v. Barr, 1 
 
 Humph. (Tenn.) 812. Watts (Pa.) 110; Pennock v. Free 
 
 iting Bree v. Holbech. Doug, man, 1 Watts (Pa.) 401 ; Mitchell v. 
 
 Clark v. Hougham, 3 Dow], & Thompson, 1 McLean 96; Carr v. 
 
 iranger v George, 5 Barn Hilton, I Curtis C. C. 280.
 
 §292 STATUTE OF LIMITATIONS. 5 1 5 
 
 the evidence which would show that such rights never 
 existed, or had been satisfied, transferred or extinguished, 
 if they ever did exist. To hold that, by concealing a 
 fraud, or by committing a fraud in a manner that it con- 
 cealed itself, until such time as the party committing the 
 fraud could plead the statute of limitations to protect it, 
 is to make the law which was designed to prevent fraud, 
 the means by which it is made successful and secure." 
 Mr. Justice Harlan has said: 1 " It is an established rule 
 of equity, as administered in the courts of the United 
 States, that, where relief is asked on the ground of actual 
 fraud, especially if such fraud has been concealed, time 
 will not run in favor of the defendant until the discovery 
 of the fraud, or until, with reasonable diligence, it might 
 have been discovered." 
 
 § 292. Statute of limitations. — It follows then that, as to 
 a creditor who seeks to impeach a deed made by his 
 debtor conveying real estate to a third person in fraud of 
 his creditors, the statute of limitations, when applicable, 
 begins to run from the time the fraudulent deed is 
 recorded or from the time the creditor has actual notice 
 of the conveyance, whichever first occurs. 2 In New York 
 the rule has been laid down that the statute does not 
 begin to run until the creditor has obtained judgment and 
 execution has been returned unsatisfied. 3 It is familiar 
 learning that in the absence of a contrary rule established 
 by statute, a defendant who desires to avail himself of a 
 statute of limitations as a defense, must raise the question 
 either in pleading, or on the trial, or before judgment. 4 
 
 1 Kirby v. Lake Shore & M. S. R. a Weaver v. Haviland, 142 N 5 
 R. Co., 120 U. S. 136, 7S.C. Rep. 430. 534,37 N. E. Rep. 641; Brown v. 
 
 2 Hughes v. Littrell, 75 Mo. 573; Campbell, 100 Cal. 685, 35 Pac. Rep. 
 Rogers v. Brown, 61 Mo. 187 ; Wright 433. 
 
 v. Davis, 28 Neb. 479, 44 N. W. Rep * Retzer v. Wood, L09 U. 8. 187,8 
 
 490; Conn. Mut. Life Ins. Co. v. S. C. Rep. 164; storm v. United 
 
 Smith, 117 Mo. 261, 22 S. W. Rep. States. 94 U. S. 81 ; Upton v. Mc- 
 
 628. Laughlin, 105 U. S. 640.
 
 5 16 LIMITATIONS IN EQUITY. §§293-294 
 
 Ten years adverse possession is a good defense in Ala- 
 bama to a suit to set aside a deed as fraudulent x 
 
 £293. Limitations inequity. — In the consideration of 
 purely equitable rights and titles courts of equity act in 
 analogy to the statute of limitations, 2 but are not bound 
 by it. 3 As was said in the case of Hall v. Russell : ' 
 •• When an action upon a legal title to land would be 
 barred by the statute, courts of equity will apply a like 
 limitation to suits founded upon equitable rights to the 
 same property. So, in cases of implied or constructive 
 trusts, where it is sought for the purpose of maintaining 
 the remedy to force upon the defendant the character of 
 trustee, courts will apply the same limitation as provided 
 for actions at law." 5 
 
 § 293a. Statute of frauds. — A contract to convey land 
 in consideration of labor or services to be rendered is 
 manifestly within the statute of frauds." 
 
 £ 294. Insolvency or bankruptcy discharges. — I he insolv- 
 ent laws of a State have, manifestly, no extra-territorial 
 force. They affect only contracts between citizens of the 
 State in which such laws were enacted." As was tersely 
 stated in Cook v. Moffatt, 8 a certificate of discharge will 
 not bar an action brought by a citizen of another State 
 on a contract with him. Such was the conclusion of the 
 
 Snedecor v. "Watkins, 71 Ala. Is. p e t. 66; Beaubien v. Reaubien, 23 
 
 See Metropolitan Bank v. St. Bow. 207, to which may be added, 
 
 Louis Dispatch Co.. 149 U.S. 148, 13 S. Wisner v. Barnet. \ Wash. C. C. 638; 
 
 C Rep. 944 ; Whitridge v. Whitridge, Kane v. Bloodgood, 7 Johns. Ch. (N. 
 
 76Md.85, 24 A.tl. Rep. 645 ; Godden Y.) 110 ; Michoud v. Girod, 1 How. 
 
 v. Kimmell, uu U. s. 201: Hammond 560. 
 
 v. Hopkins, 1 13 r. s. 274, l.-s C. Rep. B Masterson v. Little, 75 Tex. 68*, 
 
 418. 13 S. W. Rep. 154 ;Spraguev. Haines, 
 
 Manning v. Hayden, 5 Sawyer 68 Tex. 217, 4 S. W. Rep. 371. 
 
 •Hills v. Carlton, 74 Me. L56 ; 
 
 twyer 515. Rhawn v. Pearce, 110 111 350. 
 
 Citing Elmendorf v. Taylor, 10 s 5How.295 
 Wheat. 176 ; Miller v. Mclntyre, (i
 
 >M 
 
 BANKRl PTCV DIS( IIARG1 S. 
 
 
 Supreme Court of Maine in Felch v. Bugbee, 1 where this 
 question is most carefully examined; and in Baldwin v. 
 Hale, 2 citing that case with approbation, the court decided 
 that a discharge under the insolvent law of one State was 
 not a bar to an action on a note given and payable in the 
 same State, the party to whom the note was given being 
 a resident of a different State, and not having proved his 
 debt against the defendant's estate in insolvency, nor in 
 any manner having been a party to the proceedings.' 1 In 
 Pratt v. Chase 4 it is said that "as to creditors of the 
 insolvent who are not citizens of the same State where 
 the discharge is granted, the want of binding force to 
 defeat the obligation of a contract is founded upon the 
 want of jurisdiction over such creditors." 5 A debt con- 
 tracted and payable in a foreign country is not barred by 
 a discharge under the United States Bankrupt Act, where 
 
 1 48 Me. 9 ; Silverman v. Lessor, 88 
 Me. 605. 
 
 ■ } 1 Wall. 223. In Brown v. Smart, 
 145 IT. S. 457, the court says: "So 
 long as there is no national bankrupt 
 act, each State has full authority to 
 pass insolvent laws binding persons 
 and property within its jurisdiction, 
 provided it does not impair the obli- 
 gation of existing contracts ; but a 
 State cannot, by such a law, (lis 
 charge one of its own citizens from 
 his contracts witli citizens of other 
 States, though made after the passage 
 of the law, unless they voluntarily 
 become parties to the proceedings 
 in insolvency. Sturges v. Crownin- 
 shield, 4 Wheat. 122 ; Ogden v. Saun- 
 ders, 12 Wheat. 213; Gilman v. Lock- 
 wood, 4 Wall. 409." 
 
 3 See Guernsey v. Wood, 130 Mass. 
 503 ; Bedell v. Scruton, 54 Vt. 493 ; 
 Watson v. Bourne, 10 Mass. 337 ; 
 Phelps v. Borland, 30 Hun (N. Y) 
 362, 366, 17 Weekly Dig. (N. Y.) 
 556; McMillan v. McNeill, 4 Wheat. 
 
 209; Hale v. Baldwin. 1 Clitl. 517, 
 affi'd as Baldwin v. Hale, 1 Wall. 
 223; Boyle v. Zacharie, 6 Pet. 635, 
 648; Soule v. Chase, 39 N. Y. 342; 
 Ogden v. Saunders, \2 Wheal. 313; 
 Green v. Sarmiento, 1 Pet. ( '. I 1 ; . 
 Palmer v. Goodwin, 32 Me. 535 : Very 
 v. McHenry, 29 Me. 206 ; Fiske v. Fos- 
 ter, 10 Met. (.Mass. | 597 ; ( 'ha-.- \ . 
 Flagg, 48 Me. L82 ; Savoye v. .Marsh. 
 10 Met. (Mass.) 594 ; Bell v. Lamprey, 
 1 Am. Insolv. Rep. it) : Scribner \ . 
 Fisher, 2 Gray i Mas-,.) 13; Smith v. 
 Smith, 2 Johns. I X. V. I 335 ; Gardner 
 
 v. Oliver 1 '- Bank, 1 1 Barb, i N. Y. i 
 
 558 : Towne v. Smith. I Woodb. & M 
 115; Peck v. Eibbard, 26 Vt. 698 ; 
 
 Eawley v. Hunt, -J? rowa 303 ; W I- 
 
 bridge v. Allen. 12 Met. i Mass. 170 : 
 Beer v. Hooper, 32 Miss. 346 ; Ander- 
 son v. Wheeler. 25 Conn. 608; (row 
 v. Coons. 27 Mo. 512. 
 *44N. V. 597. 
 1 *.iit compare Murray v. Rotten. 
 ham. 6 Johns. Ch. N >
 
 
 EXISTING CREDITORS. 
 
 §295 
 
 the creditor was not a party to and had no personal 
 notice of the proceedings in bankruptcy. 1 The discharge 
 of the debtor is not necessarily a bar to the creditor's 
 proceedings to reach property fraudulently alienated. 
 Thus, in State v. Williams," it appeared that A, having 
 made a fraudulent conveyance of his real estate, was 
 afterward sued by B. During the pendency of the suit, 
 A filed his petition in bankruptcy, and obtained his dis- 
 charge before judgment was had against him. After- 
 ward B filed a bill to set aside the fraudulent conveyance, 
 and to subject the property to the payment of the judg- 
 ment against A. The court held that the discharge in 
 bankruptcy was no bar to the proceeding. The creditor's 
 proceedings are quasi in rem? 
 
 § 295. Existing and subsequent creditors. — It is said in 
 Collins v. Nelson 4 that, in a suit by a creditor to set 
 aside a conveyance of real estate, alleged to have been 
 executed by his debtor for the fraudulent purpose of 
 cheating, hindering and delaying the creditor in the 
 
 McDougall v. Page, 55 Vt. L87, 
 28 Alb. L. J. 372; See McMillan v. 
 McNeil, -1 Wheat. 309 ; Smith v. Bu- 
 chanan, 1 East 6; Klli^ v. McHenry, 
 !.. R. 6 I P. 22 
 • 9 Baxt. (Tenn.) 64. 
 A plea of discharge under a for- 
 Lnsolvency law must Bel forth the 
 law under which it was procured, and 
 show that it discharged the debt sued 
 upon. Baker v. Palmer, 1 Am [nsolv. 
 Rep eas granted 
 
 under the United States Bankrupl 
 \<[ to corporations. AnsoniaB. &C. 
 • u Lamp < Ihimney Co., 53 
 N. \ 12 ;. I - ure the benefil of a 
 harge in bankruptcy it should be 
 promptly interposed as a defense to 
 a pending against t he bank- 
 rupl Dimock v. Rei ere I topper Co., 
 ll?i 3. 559. 8 s C. Rep. 855, and 
 
 a cited; Bradford v. Rice, 102 
 Mass. 472; Hollister v. Abbott, 31 
 N. II. 442. As to attacking a dis- 
 charge, see Poillon v. Lawrence, i? 
 X. V. 207, ami casos cited. As to 
 claims barred ami not barred, see 
 Eennequin v. Clews, 111 I". S. 676, I 
 s. t '. Rep. 576; Strang v. Bradner, 
 ill I '. s. 555, 5 s. ( '. Rep. 10as ; Noble 
 v. Hammond, 129 V. S. 69, 9 S. C. 
 Rep. 235; Ann-, v. Moir, 138 U S. 311, 
 11 S. c Rep. 311. It may be here 
 noted that, in New Fork, an impris- 
 oned debtor is not entitled to a dis- 
 charge upon making a voluntary 
 gnment under the statute it' it is 
 shown that he made a disposition of 
 his property with intent to defraud 
 creditors. Matter of Brady, 69 N. Y. 
 215, 1 Am [nsolv. Rep. 102. 
 •m End. 7.-..
 
 § 296, 297 GIFT OF LAND. 5 [9 
 
 collection of the debtor's indebtedness to him, the answer 
 of the debtor to the effect that, at the time of the com- 
 mencement of the suit, no part of his indebtedness to the 
 creditor was due and unpaid, will constitute a complete 
 defense in bar of such suit. This statement is, it seems 
 to us, misleading. As is elsewhere shown, subsequent 
 creditors may attack conveyances made with the inten- 
 tion to avoid future liabilities l or schemes of fraud, or 
 to place the risks of new ventures and speculations upon 
 the creditor's shoulders. 2 
 
 § 296. Sufficient property left— Gift of land. — The general 
 rule applicable to conveyances of both real 3 and per. 
 sonal property, 4 as announced by the Supreme Court of 
 Indiana, is, that a sale cannot be impeached as fraudulent 
 unless it is shown that the debtor had no other property 
 subject to execution at the time the conveyance was 
 made. 5 This is also a rule of pleading. 6 
 
 Where a father in solvent circumstances made an oral 
 gift of land to his son, who entered into possession and 
 made lasting improvements on the property, the latter 
 was considered to have a good title as against creditors 
 of the father. 7 " Taking possession under a parol agree- 
 ment with the consent of the vendor, accompanied with 
 other acts which cannot be recalled so as to place the 
 party taking possession in the same situation that he pre- 
 viously occupied, has always been held to take such 
 agreement out of the operation of the statute" of fraud. 
 
 § 297. What sheriff must show against stranger. — As a 
 general rule process regular on its face, and issued by a 
 
 1 See Chap. VI, g$ 96-101. 6 See § 140. 
 
 2 See §100. 1 Dozier v. Matson, 94 Mo. 
 
 3 Hardy v. Mitchell, 67 Ind. 485; S. W. Rep. 268. 
 
 Nohlev. Hines, 72 Ind. 12 ; Spaulding B Sedg. & Wait on Trial of Title to 
 
 v. Blythe, 73 Ind. 93. Land (2ded.), §321a; Lowrj v. Tew, 
 
 «Rose v. Colter, 76 Ind. 592. 3 Barb. 1 !h. (N. Y. I 407; Freeman v 
 
 5 See Emerson v. Opp, 139 Ind. 27. Freeman, 13 N. Y. 34. 
 38 N. E. Rep. 330.
 
 520 SET-OFF — CONSIDERATION. §§ 297a, 297b 
 
 tribunal or officer having authority to issue it, is sufficient 
 to protect the officer, although it may have been irregu- 
 larly issued. But when an officer attempts to overthrow 
 a sale by a debtor on the ground that it was fraudulent as 
 to creditors, he must go back of his process and show the 
 authority for issuing it. If he acts under an execution, he 
 must show a judgment; and if he seizes under an attach- 
 ment, he must show the attachment regularly issued. 1 
 
 § 297a. Set-off. - — The cases relating to set-off are full of 
 technical statements. The field is a broad one. We may 
 observe that where an assignee seeks to enforce a bond 
 and mortgage which was part of the assigned estate, the 
 defendant mortgagor is entitled to set-off in equity a debt 
 due to him from the assignor, though the mortgage may 
 not have been due when the assignment was made." 
 
 § 297b. Attacking consideration and good faith. — The sub- 
 ject of consideration is elsewhere discussed. 3 A mortgagor 
 may, in defending foreclosure, show want of considera- 
 tion, and, when this is shown, the mortaaofee cannot 
 rebut the defense by proving that the notes and mortgage 
 
 1 Keys v. Grannis, 3 Nev. 550; 41 ; Savage v. Smith, 2 W. Bl. 1104; 
 
 Thornburgh v. Sand 7 Cal. 561. See Bac. Abr. Trespass, G. 1." See, also, 
 
 81. In Damon v. Bryant, 2 Pick. Hargetv. Blackshear, 1 Taylor (N. 
 
 (Mass.) 413, Chief -Justice Parker said: C. ) »107 ; High v. Wilson, 2 Johns. 
 
 " Where the goods taken are claimed (N. Y.) 46; Doed. Bland v. Smith, 
 
 l>\ a person who was not a party to the 2 Stark. 199; Weyand v. Tipton, 5 
 
 suit, and be brings trespass, and his Serg. & R. (Pa.) 332; Casanova v. 
 
 title is contested on the ground of Aregno, 3 La. 211; Trowbridge v. 
 
 fraud, under the statute 13 Eliz. c. 5, Bullard, 81 Mich. 451, 45 N. W. Rep. 
 
 a judgmenl musl be shown if the 1012; Bartlett v. Cheesebrough, 32 
 
 officer justifies under an execution, or Neb. 339, 49 N. W. Rep. 360. 
 
 a debt it under a writ of attachment, '-' Richards v. La Tourette, 119 N. 
 
 because it is only by showing that he Y. 54, 23 N. E. Rep. 531. See Roths- 
 
 acted f<>! a creditor, that he can ques- child v. Mack, 115 N. Y. 1, 21 N. E. 
 
 tion thetitleof the sendee, The au- Rep. 726; Smith v. Felton, 43 N. Y. 
 
 tborities to this poinl arc Lake v. Bil- 419. 
 
 lers, 1 Ld. Raym. 783 ; Bull. N. P. 'SeeChap.XV. 
 91, 2-> I . A ck worth v. Kenipe, Doug.
 
 § 29/c 
 
 \\ HEN f'.< >\ I R< >VERSIES N( > I SEP \k.\i:l I . 
 
 521 
 
 were also given to defeat creditors. 1 A trust deed made 
 with the design of preventing the enforcement of a judg- 
 ment for alimony, will not be enforced in a court of 
 equity, 2 and the facts may be brought out as a defense. 
 
 § 297c. When controversies not separable. — In a suit by 
 an assignee for the benefit of creditors, to disencumber a 
 fund of alleged liens claimed by different creditors, the 
 fact that each defendant had a separate defense will not 
 create a separable controversy as to each. 3 
 
 1 Clark v. Clark. 62 N. H. 271 ; 
 Wearse v. Pierce, 24 Pick. (Mass.) 141. 
 
 2 Scott v. Magloughlin, 138 [1136, 
 24 N. E. Rep. 1030. 
 
 3 Rosenthal v. Coates, 148 U. S. 
 143, 13 S. C. Rep. 576. See Fidelity 1 11s. 
 
 T. &S. D. Co. v. Huntington. 117 I'. S. 
 280, 6 S. C. Rep. 733 : Young v. Par- 
 ker, 132 U. S. 207. Hi S C. Rep. 75 ; 
 Graves v. Corbin, 132 U. S. 586, 10 
 S. C. Rep. 196; Brinkerhoff v, Brown, 
 6 Johns. Oh. (N. V.) 139.
 
 CHAPTER XX. 
 
 HUSBAND AND WIFE — FRAUDULENT MARRIAGE 
 SETTLEMENTS. 
 
 §298. 
 299. 
 299a 
 300. 
 
 301. 
 302. 
 
 303. 
 304. 
 305. 
 
 305a 
 306. 
 
 Tbe marriage relationship. 
 
 Wife as husband's creditor. 
 
 . Claim for support. 
 
 Transactions between, how re- 
 garded. 
 
 Burden of proof. 
 
 Mutuality of fraudulent design 
 in cases of ante-nuptial settle- 
 ments. 
 
 Husband as agent for wife. 
 
 Wife's separate property. 
 
 Mingling property of husband 
 and wife. 
 Book entries of transactions. 
 
 Marriage settlements — Amount 
 of settlement. 
 
 § 307. Post nuptial settlement. 
 
 308. Purchase by wife after mar- 
 
 riage. 
 
 309. Valid gifts — Subsequent insol- 
 
 vency. 
 
 310. Articles of separation. 
 
 311. Statute of frauds. 
 
 312. Policies of insurance. 
 
 313. Competency of wife as witness. 
 314 Fraudulent conveyances in con- 
 templation of marriage. 
 
 315. Fraudulent transfers as affect- 
 ing dower. 
 315a. Judgment against wife. 
 
 § 298. The marriage relationship. — It would be impracti- 
 cable to devote separate chapters to the consideration of 
 the different frauds upon creditors incident to each of the 
 various relationships recognized by law; but, as the fair- 
 ness and good faith of transactions and conveyances 
 between husband and wife are so frequently challenged 
 and assailed by creditors, the rules and decisions govern- 
 ing this branch of our subject must be discussed. As 
 will appear, husband and wife have been made by legisla- 
 tion independent legal personages. 1 A debtor, when 
 threatened with insolvency, naturally reposes confidence 
 in his wife ; the relationship inspires this confidence, 
 and it very often results that she becomes wrongfully 
 
 I-" Page, Ml U. 8. 118, 88 N. Y. 304 ; Manchester v. Tibbetts, 
 4 s. C Rep. 888; Whiton v. Snyder, 121 N. Y. 219, 24 N. E. Rep. 304.
 
 § 299 
 
 WIFE AS HUSBAND S CRED1 n >R. 
 
 5-3 
 
 possessed of " the creditor's trust fund," so called. The 
 statutes conferring upon married women the power to 
 hold and convey property much the same as though they 
 were single, have unfortunately encouraged husbands to 
 confide to the keeping of their wives property which 
 should have been turned over to creditors or held subject 
 to their process. Frauds committed by the husband and 
 wife upon one another, or in contemplation of, or after 
 entering into the relationship, will call for incidental dis- 
 cussion as we proceed. 
 
 § 299. Wife as husband's creditor.— A wife can become a 
 creditor of her husband, 1 and he may pay an honest debt 
 to her, 2 though as to other creditors the claim may appear 
 stale and ancient. The debtor is not compelled by law 
 to resort to the statute of limitations as a defense, 3 nor 
 can others interfere or insist upon it for him, nor is the 
 wife estopped to receive payment of a debt of this char- 
 
 1 Garr v. Klein, 93 Iowa 313 ; Man- 
 chester v. Tibbetts, 121 N. Y. 219. 21 
 N. E. Rep. 304 ; Robinson v. Stevens, 
 93 Ga. 538. 21 S. E. Rep. 96 ; Romans 
 v. Maddux, 77 Iowa 203, 41 N.W. Rep. 
 763 ; Ardis v. Theus, 47 La. Ann. 1438, 
 17 80. Rep. 865 ; Stramann v. Schee- 
 ren, 7 Col. Ct. App. 1, 42 Pac. Rep. 
 191 ; First Nat. Bk. v. Kavanagh, 7 Col. 
 Ct. App. 160, 43 Pac. Rep. 217; Wil- 
 liams v. Harris, 4 S. Dak. 22, 54 N. 
 W. Rep. 926. 
 
 8 Patton v. Conn, 114 Pa. St. 183, 6 
 Atl. Rep. 468: Hewitt v. Williams, 47 
 La. Ann. 712 ; Fulp v. Beaver, 136 
 Ind. 319, 36 N. E. Rep. 250 ; Robinson 
 v. Stevens, 93 Ga. 535, 21 S. E. hep. 
 96 ; Lassiter v. Hoes, 11 Misc. (N. Y.) 
 1, 31 N. Y. Supp. 850 ; Hugbes v. Bell, 
 62 111. App. 74 ; National Bank of Re- 
 public v. Dickinson, 107 Ala. 265, 18 
 So. Rep. 144; Tarsney v. Turner, 48 
 Fed. Rep. 818. Where money was 
 loaned in good faith by the wife to 
 
 the husband, it is no objection to the 
 validity of the deed of the land given 
 in repayment of such loan t li.it it was 
 given after a creditor bad recover.. I 
 judgment. Qaar v. Klein, 93 Iowa 
 313, 01 X. W. Rep. wis: cf., Carson v. 
 Stevens, 40 Neb. 112, 58 N W. Rep. 
 845. In Woodbridge v. Tilton, 84 
 Me. 95. 24 Atl. Rep. 583, the court 
 says: "A husband who is justly in- 
 debted to Ins wife may appropriate 
 his property to the payment of her 
 claim, io the exclusion of his other 
 creditors. Ferguson v. Spear, 65 Me 
 277." See DeBerry v. Wheeler, 128 
 Mo. 84, 30 S. W. hep 388; Winfield 
 Nat. Hank v. Croco, 4'i Kan. 629, 26 
 Pae. Rep. 942. See Schreyi r v. Scott, 
 134 U. S. 405, H» s. c. Rep 
 
 Manchester v. Tibbetts, 121 N V 
 219, 24 X. E. lop. -ot ; Burnham \ 
 McMichael, 6 Tex. Civ. App. 196, 26 
 
 S. \\ . h'e] 1. 887.
 
 524 
 
 WIFE VS II (JSBAND S CREDIT! >R. 
 
 .: 299 
 
 acter. 1 She has the same standing as any other creditor.- 
 The rule as it prevailed at common law was, that a hus- 
 band could not contract with his wife. Her money not 
 held to her separate use, coming into his possession, was 
 regarded as his property ; 3 and his promise to repay such 
 money to her could not be enforced either at law or in 
 equity. 4 This rule, as we have said, has now been almost 
 universally abrogated. 5 In many respects a wife may, 
 under the existing policy of the law, deal with her hus- 
 band, as regards her separate estate, upon the same terms 
 as though the relationship had no existence. " When the 
 wife, by proper and sufficient proof, shows that her hus- 
 band owes her, she is entitled to the same remedies and 
 has the same standing to enforce any security for the 
 payment of the debt that she may have received as any 
 other creditor." 6 Thus, in a case in Massachusetts, in 
 which the opinion was rendered by Chief-Justice dray, 
 now one of the justices of the Supreme Court of 
 
 1 Brookville Nat. Bank v. Kimble, 
 7C ln.l. 195. 
 
 • Manchester v. Tibbetts, 121 N. Y. 
 219, 24 .V I-:. Rep. 304. 
 
 8 Joiner v. Franklin, 12 B. J. Lea 
 (Tenn.) 422, Whiton v. Snyder, 88 N. 
 Y 302; rates v. Law, si; Va. 117, 9 
 S. E. Rep. Vis : Granl v. Sutton, 90 
 Va. 771, I'.i S. K. Rep. 784. 
 
 ' Atlantic Nat. Bank v. Tavener, 
 130 Mass 109; Vlexander v. Crit- 
 tenden, 4 Allen (Mass.) 342; Turner 
 < Nye, 7 Allen (Mass.) 176 ; Phillips 
 v. Frye, it Allen (Mass.) 36; Degnanv. 
 Farr, 12(5 Mass. 397, 299 : Kesner v. 
 Trigg, 98 U. S. 54 ; Jaffrey v. Mc- 
 Gough, 88 Ala. 202, 3 80. Rep. 594. 
 In West Virginia (Miller v. Cox, 38 
 W Va. 717, 18 8. K. Rep. 960 : Kana- 
 wha Valley Hank v. Atkinson, 82 W. 
 Va 203, 9 s. 1:. Rep. 175) it is held 
 that the presumption <>r law, where 
 money is delivered l>\ a wife t<>a hus- 
 
 band, is that it is a gilt, which pre 
 sumption can only be overcome bj 
 cdear evidence of a contrary under- 
 standing. But see Hood v. Jones, "i 
 Del. Ch. 77. Compare Iseminger v. 
 CrisweU (Iowa, 1896) (17 X. W. Rep. 
 289. 
 
 'Towers v. Eagner, 3 Whart, 
 (Pa.) 48; Johnston v. Johnston, 
 1 Grant (Pa.) 468; Kutz's Appeal. 
 10 Pa. St. 90; Grabill v. Mover, 
 45 Pa St. 530 ; Atlantic Nat. Bank 
 v. Tavener, 130 Mass. 409; Bab- 
 cock v. Eckler. 24 N. Y. 623 
 Whiton v. Snyder, 88 N. Y. 299: 
 Savage v. O'Neil, 44 N. Y. 298 ; Stead- 
 man v. Wilbur, 7 R. I. 181 ; //; re 
 Blandin, 1 Lowell 543; Horton v. 
 Dewey, 53 Wis. 410, 10 N. W. Rep 
 599. 
 
 • Manchester v. Tibbetts, 121 N. Y. 
 222, 24 N. E. Rep. 304.
 
 § 2(J9 V\ III'. AS HUSBAND'S l REDITOR. 
 
 the United States, it was decided that where a 
 wife loaned to her husband upon a promise of repay- 
 ment money constituting a part of her separate estate, 
 a conveyance of land made by him to her, through a 
 third person, in repayment of such loan, and free from 
 a fraudulent design, would be valid against his creditors. 1 
 A husband may, of course, give his wife a mortgage to 
 secure a valid debt. 2 The wife may loan monev to her 
 husband and he has the right to prefer her, 3 and the wife 
 when not questioned is not bound to proclaim the fact 
 that she is a creditor. 4 While a husband has a risrht to 
 pay his wife a bona fide debt, yet a deed by the husband 
 to the wife cannot be supported as being founded upon a 
 valuable consideration which rests upon his mere volun- 
 tary promise that he would at some time give her a sum 
 of money ; 5 nor will it be upheld where the consideration 
 is grossly inadequate. 6 
 
 Manifestly a wife's relinquishment of her dower right 
 is a sufficient consideration for a reasonable settlement 
 upon her out of the husband's property. 7 But joining in 
 a release of property incumbered to almost its full value, 
 is not sufficient consideration to support a conveyance of 
 other realty by the husband to the wife ; 8 and where the 
 value of the property greatly exceeds the value of the 
 dower right, the deed will be set aside as to such excess '•' 
 
 1 Atlantic Nat. Bank v. Tavener, 3 Laird v. Davidson, 1'24 Ind. 111. 
 
 130 Mass. 407 ; followed and approved 25 X. E. Rep. 7; Strauss v. Parshall, 
 
 by the United States Supreme Court 93 Mich. 475. 51 X. W. Rep. 1117. 
 
 in Medsker v. Bonebrake, 108 U. S. 'Robinson v. Stevens, 93 Ga 
 
 66, 2 S. C. Rep. 351. See Tomlinson 21 S. E. Rep. «-#»;. 
 
 v. Matthews, 9S 111. 178; Jewett v. ■'•Wynne v. Mason, 72 Miss. 183 L8 
 
 Noteware, 30 Huh (N. Y.) 194; So. Rep. 422. 
 
 French v. Motley, 63 Me. 326 ; Gra- 'Case Manufacturing Co. v. Per- 
 
 bill v. Mover, 45 Pa. St. 530; Stead- kins (Mich, 1895), 64 N. W. Rep. 301. 
 
 man v. Wilbur, 7 R. I. 481: Lang- Eershy v. Latham. 46 \rk. 542. 
 
 ford v. Thurlby, 60 Iowa 105, 14 N. 'Commonwealth [ns.&TrustCo v 
 
 W. Rep. 135. Brown. 166 Pa. St. 477, 31 Ml Rep 205 
 
 'Spaulding v. Keyes, 125N. Y.113, 'Glascock v. Brandon, 35 W. Va. 
 
 26 N. E. Rep. 15. 84,112 S. E. Rep. 1 102.
 
 526 CLAIM FOR SUPPORT. §§ 299a, 300 
 
 § 299a. Claim for support. — As has already appeared, 
 a wife may bring suit to annul a conveyance made to 
 defeat her claim for alimony, 1 but it seems to be doubted 
 in a recent Connecticut case 2 whether the debt or duty 
 to support the wife, which is a continuing one, is a debt 
 or duty within the protection of the statute, or the rules 
 of the common law against fraudulent conveyances. The 
 court says: "We are not aware of any case anywhere, 
 which holds that a duty of this kind is within the protec- 
 tion of any statute, or of the rules of the common law, 
 against fraudulent conveyances The duty protected by 
 such rules or statutes is generally some particular spe- 
 cific duty to pay money or money's-worth, and not a 
 general continuing duty, like this of support, to pursue a 
 certain course of conduct." Naturally the rule that a 
 conveyance made to defeat a contingent claim will be 
 overturned, should be applied to the case of a failure to 
 discharge the duty of support. 
 
 § 300. Transactions between— How regarded. — Transac- 
 tions between husband and wife, to the prejudice of the 
 husband's creditors, are, however, to be scanned closely, 3 
 and their bona fides must be clearly established, 4 as fraud 
 
 'See ? 90. Chase v. Chase, 105 Rep. 580; Skellie v. James, 81 (ia. 
 
 Mass. 385 ; Livermore v. Boutelle. 11 11'.), s S. E. Rep. GOT; Brownell v. 
 
 Gray l M.-bs. > 217; Stoddard, 42 Neb. 184, 60 N. W. Rep. 
 
 "Ullrich v. Ullrich, 63 Conn. 585. 380; Wynne v. Mason, 72 Miss. 433, 
 
 Eershy \ Latham, 40 Ark. 550; L8 So. Rep. 422 ; Billington v. Sweet- 
 
 Graves v. Davenport, 50 Fed. Rep. ing, 172 Pa. St. 161, 33 Atl. Rep. 548 ; 
 
 881 ; White v. Benjamin, 150 X. V. Reese v. Reese, 157 Pa. St. 200, 27 
 
 .1 N i: Rep. 956; Duttera v. Ml. Rep. 70:5 : Town of Norwalk v. 
 
 Babylon, -:; Md. 544, 35 AH. Rep. 64; [reland, 68Conn. 1 4, 35 Atl. Rep. 804. 
 
 Robinson v. Clark, 76 Me. 494 ; Frank *Booher v. Worrill, 57 Ga. 235. 
 
 v.King, 121 111 254, L2 N. E. Rep. See Thompson v. Feagin, 60 Ga. 82 ; 
 
 Williams v. Barris,4S Dak. 22, Hinkle v. Wilson, :>■', Md. 292; Seitz 
 
 ■"■I N W. Rep. 926; Binchman v. v. Mitchell, 94 D". S. 584 ; Lee v. Cole, 
 
 Parlin & O. Co., 71 Fed. Rep. 698 ; 44 N. J. Eq. 828, 15 Atl. Rep. 531; 
 
 Kennedy v. Lee, 72 Ga. 10; Gross v. Webb v. [ngham, 29 W. Va. 389, 1 8. 
 
 Eddii 3 8. W. Rep. E Rep. 816 ; Curtis \. Wortsman, 2fi 
 
 L ; Reese v. Shell, 95 Ga. 750, 22 S. E. Fed. Rep. 893; Bayne v. state, 02
 
 § 300 TRANSACTIONS BETWEEN. 5.;; 
 
 is so easily practiced and concealed under cover of the 
 marriage relation. 1 Lord Mardwicke said: "1 have 
 always a great compassion for wife and children, yet. on 
 the other side, it is possible, if creditors should not have 
 their debts, their wives and children may be reduced to 
 want." The court observed in Hoxie v. Price: 2 "On 
 account of the great facilities which the marriage relation 
 affords for the commission of fraud, these transactions 
 between husband and wife should be closely examined and 
 scrutinized. 3 to see that they are fair and honest, 4 and 
 not mere contrivances resorted to for the purpose of 
 placing the husband's property beyond the reach of his 
 creditors." In all such cases the parties are under temp- 
 tation to do themselves more than justice. 5 What is 
 secured to the one is apt to be shared by the other. Ordi- 
 narily the claim of a creditor against a debtor is 
 antagonistic, but in this class of cases they are sure to be 
 in harmony, the debtor supporting the claims of the cred- 
 
 Md. 103 : Grant v. Sutton. 90 Va. 771, be regarded with watchful suspicion, 
 
 19 S. E. Rep. 784; Kemp v. Folsom, and, when attempted to be asserted 
 
 14 Wasli. 16, 43 Pac. Rep. 1100. See against creditors upon the evidence 
 
 §308. of the parties alone, uncorroborated 
 
 'White v. Benjamin. 150 N. Y. 265, by other proof , should be rejected at 
 
 44 N. E. Rep. 956 ; Williams v. Har- once, unless their statements are so 
 
 ris, 4 S. Dak. 22. 54 N. W. Rep. 926 ; full and convincing as to make the 
 
 Town of Norwalk, v. Ireland, 68 fairness and justice of the claim 
 
 Conn. 14, 35 Atl. Rep. 804. manifest." Diggs v. McCullough. Hi) 
 
 8 31 Wis. 86. See Fisher v. Shelver, Md. 592, 16 Atl. Rep. 45:! : Manning v. 
 
 53 Wis. 501, 10 N. W. Rep. 681. Carruthers, 83 Md. 6, 34 Atl. Rep. 254 
 
 3 Resse v. Shell, 95 Ga. 749. 22 S. E. Seitz v Mitchell, 94 U. S. 583 ; Town of 
 
 Rep. 580; Lambrecht v. Patten, 15 Norwalk v. Ireland, 68 Conn. 11. 35 
 
 Mont. 260, 38 Pac. Rep. 1063. Atl. Rep. 804. See s. v.. I v. 
 
 4 Gable v. Columbus Cigar Co., 140 Cole, 44 N. J. Eq. 338 \ con- 
 Ind. 563, 38 N. E. Rep. 474 : Knappv. veyanee by a husband to a wife may 
 Day, 4 Col. App. 23, 34 Pac. Rep be treated as voluntary, where the 
 1008. alleged debt had not been n 
 
 5 In Post v. Stiger, 29 N. J. Eq. 556, nized for many years, and no account 
 the court says : " A claim by a wife kept or interest required. Dillman v. 
 against a husband, first put in writ- Nadelhoffer, 162 [11.625,45 N. E. Rep. 
 ing when his liabilities begin to 680; Frank v. King, 121 III. 250, 12 
 jeopardize his future, should always N. B. Hep. 720.
 
 BUROICN OF PROOF 
 
 § 301 
 
 itor. ' When a creditor challenges such a contract for 
 fraud, slight evidence will change the onus and cast on the 
 conjugal pair the duty of manifesting the genuineness and 
 good faith of the transaction by such evidence as will 
 satisfy or ought to satisfy an honest jury. 2 " Dealings 
 between husband and wife which result in the appropria- 
 tion of the husband's property for the payment of a debt 
 claimed to be due to the wife, to the exclusion of other 
 creditors, it must be. admitted, furnish uncommon oppor- 
 tunities for the perpetration of fraud, and should be 
 carefully and rigidly scrutinized." 3 There is, however, 
 no absolute legal presumption that a conveyance of land 
 made by a debtor to his wife is fraudulent as against a 
 creditor of the husband whose judgment was recovered 
 after the conveyance. 4 A wife may be held as trustee 
 ex maleficio for the benefit of her husband's creditors. 5 
 
 § 301. Burden of proof. — It is said by Mr. Justice Taylor, 
 in the case of Horton v. Dewey, ^ that, " in a contest 
 between the creditors of a husband and the wife, if the 
 wife claims ownership of the property by a purchase, the 
 burden of proof is upon her to prove, by clear and satis- 
 factory evidence, such purchase, and that the purchase 
 
 Knapp v. Day. 4 Col. App. 24, 34 
 Pac. Rep. 1008. 
 
 h has been said, however, that 
 "such dealings (though to be care- 
 fully scrutinized on account of the 
 temptation i<> give an unfair advant- 
 age to the wife over other creditors) 
 i ■ 1 ■ ■ — t be tested by tin- same principles 
 a- a conveyance by a debtor to a 
 stranger, when brought into question 
 as fraudulenl againsi creditors." 
 Kaufman v. Whitney, "i 1 * Mis-,, ins. 
 Citing Mangum v. Pinucane, 38 Miss. 
 Vertner v. Humphreys, 22 Miss. 
 130 ; Roach \ . Bennett, 21 Miss. 98; 
 Wilej \ Gray, 36 Miss. 510 ; Butter 
 field v. Stanton, M Miss. L5, Tins 
 
 does not seem to us to harmonize with 
 the best authority relating to the 
 subject. 
 
 • Manchester v. Tibbetts, 121 N. V. 
 222. 24 X. E. Rep. :J04 : Town of Nor- 
 walk v. [reland, 68 Conn. 14. 
 
 Hussey v. Castle. 41 Cal. 239; 
 Grant v. Ward. 64 Mr. 239. But see 
 $308. 
 
 5 James Goold I '<>. v. Maheady, 38 
 I inn X. Y 1 296. 
 
 ' 53 Wis. 413, 10 N. W. Rep. 599; 
 Hoffman \. Nolte, 127 Mo. 120. 29 
 S. W. Rep. 1006; Peeler v. Peeler, 
 109 N. C. 681, 11 S. E. Rep. 59; 
 Helms v. Green, 105 X. 1 '. 257, 11 S. 
 1; Rep. 170.
 
 *30i 
 
 BURDEN OF PROOF. 
 
 
 was for a valuable consideration, paid by her out of her 
 separate estate, or by some other person for her." And 
 it is further observed, in the course of the opinion, that : 
 " In all such cases the burden of proof showing the bona 
 fides of the purchase is upon her, and she must show by 
 clear and satisfactory evidence that the purchase was 
 made in good faith, with her separate estate, or for a con- 
 sideration moving from some person other than her hus- 
 band. In all such cases the presumptions are in favor of 
 the creditors, and not in favor of the title of the wife." 8 
 The mere recital of a valuable consideration in the instru- 
 ment or bill of sale has been considered insufficient to 
 support a verdict in favor of the wife. 3 Such a recital is 
 regarded as evidence only between the parties and their 
 privies. 4 
 
 It must be remembered that the presumption of posses- 
 sion of the wife's property by the husband, and that he 
 is therefore prima facie the owner, has been impaired by 
 
 1 Citing Stanton v. Kirsch, 6 Wis. 
 338 ; Horneffer v. Duress. 13 Wis. 603 ; 
 Weymouth v. Chicago & N. W. Ry. 
 Co., 17 Wis. 550 ; Duress v Horneffer, 
 15 Wis. 195 ; Beard v. Dedoph, 29 
 Wis 136 : Stimson v. White, 20 Wis. 
 56:}; Elliott v. Bently. 17 Wis. 591 ; 
 Putnam v. Bicknell, 18 Wis. 333; 
 Hannan v. Oxley, 23 Wis. 519 ; Fen- 
 elon v. Hogoboom, 31 Wis. 172 ; 
 Hoxie v. Price, 31 Wis. 82 ; Car- 
 penter v. Tatro, 36 Wis. 297 ; Gettel- 
 mann v. Gitz, 78 Wis. 439, 47 N. W. 
 Rep. 660. In that case the ruling was 
 put on the ground that the circum- 
 stances raised a strong presumption 
 that the property belonged to the 
 husband , which could be overcome 
 only by clear proof on the wife's part. 
 See also Glass v. Zutavern, 43 Neb. 
 334, 61 N. W. Rep. 579. 
 
 s See Gable v. The Columbus Cigar 
 Co., 140 Ind. 563-569, 38 N. E. Rep. 
 
 34 
 
 474; Stevens v. Carson, 30 Neb. 550, 
 4<J N. W. Rep. 655; Thompson v. 
 Loenig, 13 Neb. 386, 11 N. W Rep 
 168; Seasongood v. Ware. H>4 Ala. 
 212, 16 So. Rep. 51 : Kelley v. Con- 
 nell, 110 Ala. 543. 18So. Rep. 9 ; Glass 
 v. Zutavern. 43 Neb. 334. 61 N. W. 
 Rep. 579; Hoffman v. Nolte, 1*37 Mo. 
 120, 29 S. W. Rep. 1006 ; Grant v. Sut- 
 ton, 90 Va. 772, 19 S. K Rep 784 : 
 Wood v. Harrison. 41 W. V 
 23 S. E. Rep. 560 ; Clarliu v Ambrose, 
 37 Fla. 78,' 19 So. Rep 628; Butch- 
 inson v. Boltz, 35 \V. Va. 754, 1 1 S E. 
 Rep. 267; Peeler v. Peeler, 1"'.' V C. 
 628, 14 s. E. Re] 
 
 3 See Sillyman v. King. 36 Iowa 207. 
 But compare, contra, stall v. Fulton, 
 30 N. J. Law 430 ; Horton v. Dewey, 
 53 Wis. 410. ION. W. Rep 599 
 * Sillyman v. King, 86 [ow 
 Long v. Dollarhide 24 Cal. 218 ; Kim- 
 ball v.Fenner, 12N.H 248. See§ 220.
 
 530 FRAUDULENT DESIGN. § 302 
 
 modern innovations in the law. Since under the present 
 rule the wife may generally take by gift from her hus- 
 band ' as well as from others, and, by purchase, from any 
 one, her separate and personal possession of specific 
 articles must draw after it the presumption of ownership, 
 and there is no longer any controlling reason for making 
 her case exceptional, or excluding her from the operation 
 of the general rule.'-' Of course the wife will not be pro- 
 tected when she co-operates with her husband in any 
 scheme to keep his creditors at bay. 3 
 
 £ 302. Mutuality of fraudulent design in cases of ante-nup- 
 tial settlements. — To render an ante-nuptial settlement 
 fraudulent and voidable as to creditors, it is, as we have 
 seen, necessary that both parties should concur in or have 
 cognizance of the intended fraud. 4 If the settler alone 
 intended a fraud, and the prospective wife had no notice 
 of it, she cannot be affected by it. 5 Marriage, as already 
 shown, is a consideration of the highest value, which, from 
 motives of the soundest policy, is upheld with a steady 
 resolution.'' 
 
 FYaud may be imputed to the parties either by direct 
 co-operation in the original design at the time of its 
 concoction, or by constructive co-operation in carrying 
 the design into execution after notice of it.' The 
 
 ' Armitage v. Mace. 96 N. Y. 538. Nat. Bk. v. Hamilton. 59 N. Y. St. 
 
 Whiton v. Snyder, s* N". Y. 304 ; Rep. 331, 27 X. Y. Supp. 1029. 
 
 Gilben v. Glenny, 75 Iowa 513, 39 Prewil v. Wilson, 103 U.S. 22 ; 
 
 N. W. Rep. 818; Chadbourn v. Wil- Berring v. Wickham, 29 Gratt. (Va.) 
 
 liams, 45 .Minn. 294, 47 X. W. Rep. 628. Magniac v. Thompson, T Pet. 
 
 812; Ettlinger v. Eahn, L34 Mo. 198, 392. 
 
 \v Rep. 37 ; Coyne v. Sayre, 54 ' Prewil v. Wilson, 103 U. S. 22; 
 
 N .1 Eq 702, 36 \tl. Rep. 96 ; Rhodes See Nance v, Nance, 84 Ala. 375, 4 So. 
 
 v. Wood.93Tenn. 702,288. W. Rep. Rep.699; ('ohm v Knox, 90 Cal. 266, 
 
 294 27 Pac. Rep. 215. See Chap. XV. 
 
 Sloan v. Huntington, 8 *.pp. Div. §§210,212. 
 
 (X. Y | 98. 10 V Y. Supp. 393. Magniac \. Thompson, 7 Pet. 398j 
 
 • See Chap. XIV, .7 199, 200. Firsl per Story, J.
 
 §303 HUSRAND As \(.i:\i FOR WIFE. 5 3 1 
 
 question of intent must, as in other cases, he submitted 
 to the jury l 
 
 § 303. Husband as agent for wife. -- It is settled beyond 
 controversy that a husband may manage the separate 
 property of his wife without necessarily subjecting it, or 
 the profits arising from his management, to the claims of 
 his creditors. 2 The wife being vested with the right to 
 hold and acquire property free from the control of her 
 husband, the legitimate inference seems to result that she 
 can employ whomsover she desires as an agent to man- 
 age it. 3 To deny her the right to select her husband for 
 that purpose would constitute a very inequitable limita- 
 tion upon her right of ownership, compelling her to resort 
 to strangers for advice and assistance, and would perhaps 
 seriously mar the harmony of the marriage relation. In 
 Tresch v. Wirtz, 4 the vice-chancellor said : " A man's 
 creditors cannot compel him to work for them. A debtor 
 is not the slave of his creditors. The marital relation 
 does not disqualify a husband from becoming the agent of 
 his wife. All the property of a married woman is now 
 her separate estate * she holds it as a feme sole, and has a 
 right to embark it in business. She may lawfully engage 
 in any kind of trade or barter. If she engages in busi- 
 ness, and actually furnishes the capital, so that the busi- 
 ness is in fact and truth hers, she has a right to ask the 
 
 1 Monteith v. Bax, 4 Neb. 166; Y. 568. 25 X. E. Rep. 986 ; Ladd v. 
 
 Primrose v. Browning, 59 Ga. 70. See Newell. 34 Minn. 107, 24 N M Rep. 
 
 tJ254. 366; Osborne v. Wilkes, 108 X. C. 
 
 - Voorhees v. Bonesteel. 16 Wall. 672, 13 S. E. Rep 285; Eirklej \ 
 
 16; Aldridge v. Muirhead. 101 U. S. Laeey, 7 Houst.(Del.)213, 30 Atl. Rep. 
 
 399, per Chief-Justice Waite ; Tresch 994. 
 
 v. Wirtz, 34 N. J. Eq. 129 ; Hyde v. s Hyde v. Frey 28 Fed. Re| 
 
 Frey, 28 Fed. Rep. 819 ; Second Nat Woodworth v. Sweet, 51 X. V 11; 
 
 Bk. v. Merrill, 81 Wis. 151, 50 N. W. Garner v. Second Nat. Bk., 151 I 8 
 
 Rep. 505; Garner v. Second Nat. 420, 14 S. C. Rep. 390 
 
 Bk.. 151 U. S. 420, 14 S. C. Rep. 390 ; '34 N. J. Eq. 129 ; A.bbej v. Deyo, 
 
 Third Nat. Bk. v. Guenther, 123 N. 44N. Y. 347. Compare j .".
 
 532 wife's separate property. ^304 
 
 aid of her husband, and he may give her his labor and 
 skill without rendering her property liable to seizure for 
 his debts." l In Merchant v. Bunnell, 2 Davies, Ch. J., 
 said : " This court has frequently held that there is noth- 
 ing in the marriage relation which forbids the wife to 
 employ her husband as her agent in the management of 
 her estate and property, and that such employment does 
 not subject her property or the profits arising from such 
 business, to the claims of the creditors of her husband. "J 
 But a husband 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. It 
 must clearly appear that his wife is the bona fide owner of 
 the capital invested, and that the accumulations which 
 result from the conduct of the business are the legitimate 
 outcome of the investment of her property. 4 In Boggess 
 v. Richards Adm., 5 it was held that in equity the wife's 
 separate estate is chargeable with the debts of her hus- 
 band when it is acquired by his skill and experience, even 
 if the capital is furnished by her. We fail to perceive 
 how this rule can be supported, for* a debtor may give 
 away his services if he desires. 
 
 ^304. Wife's separate property. — It follows from the 
 cases cited that a creditor cannot subject to the payment 
 of his claim lands belonging to the debtor's wife, the pur- 
 chase-money of which constituted a part of her separate 
 estate ; " and where the wife was the owner of a farm 
 
 ( 'itin_ r V -hees v. Bonesteel, 16 4 Lachman v. Martin, 139 111.450. 
 
 Wall. 81. See 28 N. E. Rep. 795. 
 
 3 Keyes N Y. 1 539, 541. 5 39 W. Va. 5G7. 20 S. E. Rep. r >99- 
 
 •CSting Sherman v. Elder. 24 N. Abbej v. Deyo, 44 N. Y. 347: 
 
 Y 381 : Knapp v. Smith, 27 N. Y. Mayers v. Kaiser, 85 Wis. 382,55 N. 
 
 Buckley v Wells, 33N. Y. 518; W. Rep. 688. See § 50a ; Osborne v. 
 
 v. Dauchy, 34 X. Y. 293. See Wilkes, 108 X. C. 054, 13 S. E. Rep. 
 
 Milwaukee Barvester <'n. v. Culver, 285. 
 
 89 Bun (N. Y , 601, 35 X Y. Sup,,. 'Davis v. Fredericks, 104 U. S. 61$ 
 
 289: Abbey v. Deyo, II X. Y. 345. Compare Rutherford v. Chapman, 59 
 
 Ga.!177.
 
 §305 MINGLING PROPERTY. 533 
 
 upon which she resided, and which the husband carried 
 on in her name, without any agreement as to compensa- 
 tion, it was held that neither the products of the farm, nor 
 property taken in exchange therefor, could be attached 
 by creditors of the husband. 1 A husband must account 
 to his wife for her moneys received by him. 8 And where 
 a debtor conveyed to his father-in-law, in consideration of 
 a debt due the latter, and the father-in-law conveyed by 
 way of gift to the debtor's wife, the conveyance was upheld 
 as against creditors of the debtor. 3 
 
 ^ 305. Mingling property of husband and wife — If a wife 
 permits her husband to take title to her lands, and to hold 
 himself out to the world as the owner of them, and to 
 contract debts upon the credit of such ownership, she can- 
 not afterward, by taking title to herself, withdraw them 
 from the reach of his creditors, and thus defeat their claims.' 
 At least the courts of New Jersey so hold. And where 
 a husband and wife acquire property by their joint indus- 
 try and management, the title being taken and held in the 
 husband's name, a conveyance of the property to the wife, 
 without consideration, to the prejudice of existing cred- 
 itors of the husband, will not, it seems, be supported. 6 
 
 'Gage v. Dauchy, 34 N. Y. 293. of the law, put in motion by his cred- 
 
 See Buckley v. Wells, 33 N. Y. 518; itors, the very property Bhe had per- 
 
 Garrifcy v. Haynes, 53 Barb. (N. Y.) mitted him, year after year, \>> 
 
 599; Bancroft v. Curtis, 108 Mass. 47. represent to be liis and the apparent 
 
 2 Pitkin v. Mott, 56 Mo. App. 401. ownership <>f which had given him 
 
 :: Smith v. Riggs, 56 Iowa 488, 8 N. his business credit and standing." 
 
 W. Rep. 479, 9 Id. 385. Besson v. Eveland. 26 X -I. Eq. 17! 
 
 4 City Nat. Bank v. Hamilton, 34 See Sexton v. Wheaton, 8 Wheat 829; 
 
 N. J. Eq. 162. " Having constantly Riley v. Vaughan, 116 Mo. 169, 22 8 
 
 consented he should hold himself out W. Rep. 707 ; Frederick v. Shorey, 4 
 
 to the world as the owner of this Wash. 75, 29 Pac. Rep. 766 Stuart 
 
 property, and contract debts on the v. McClelland. 31 Neb. 646 
 credit of it, up to the very hour of 5 Langf ord v. Thurlby, 60 towa 
 
 his disaster, it would be against the 107, 14 N. W. Rep. 185; Riley v. 
 
 plainest principles of justice, and Vaughan, 116 Mo. 169, 32 S. W. Rep 
 
 utterly subversive of everything like 707 ; Frederick v Shorey, I Wash. 75, 
 
 fair dealing, to permit her to step in 29 Pac. Hep. 766. 
 now and withdraw from the process
 
 534 MINGLING PROPERTY. §305 
 
 It is said by the Supreme Court of the United States : 
 "If the money which a married woman might have had 
 secured to her own use is allowed to go into the business 
 of her husband, and be mixed with his property, and is 
 applied to the purchase of real estate for his advantage, 
 or for the purpose of giving him credit in his business, 
 and is thus used for a series of years, there being no spe- 
 cific agreement when the same is purchased that such real 
 estate shall be the property of the wife, the same becomes 
 the property of the husband for the purpose of paying 
 his debts. He cannot retain it until bankruptcy occurs 
 and then convey it to his wife. Such conveyance is in 
 fraud of the just claims of the creditors of the husband." 1 
 But the fact that the title was so placed in the husband for 
 the purpose and the intent on the part of the wife that he 
 should thereby acquire a fictitious credit, and that such 
 credit was extended, must be specially alleged and proved. 2 
 If the creditor, when he extended the credit, had knowl- 
 edge or notice sufficient to put a prudent man upon inquiry 
 as to the real state of the title, the wife is not estopped to 
 claim the property as her own. 3 Humes v. Scruggs is 
 discussed and analyzed by Choate, J., in Van Kleeck v. 
 
 Bumes v. Scruggs, 94 U. S. 27. 468; Moore v. Page, 111 U. S. 119,4 
 
 Citing Fox v. Moyer, 44 N. Y. 125, S. G. Rep. 388 ; Beecher v. Wilson, 84 
 
 l:;i : Savage v. Murphy, :J4 X. Y. Va. 813, 6 S. E. Rep. 209; Diggs v. 
 
 508; Babcock v. Eckler, 24 X. V. MeCullough, 69 Md. 592; Porter v. 
 
 <;■.':;: Robinson v. Stewart, 10 X. V. Goble, 88 Iowa 565, 55 N. W. Rep. 
 
 L90; Carpenter v. Roe, 10 X. V. 227; 530; Hopkins v. Joyce, 78 Wis. 443, 
 
 Hinde'a Lessee v. Longworth, 11 47 N. W. Rep. 722. 
 
 Wheat. 199; City Nat. Bk. v. Hamilton, Brisco v. Harris, 112 N. C. 671, 16 
 
 34 N.J Eq. 158; Kennedy v. ] ,72 S. E. Rep. 850 ; De Votie v. McGerr, 15 
 
 Ga W; Rilej \. 7aughan, 116 Mo. Col. 467. 24 Pac. Rep. 923 ; Hews v. 
 
 178, 22S. W. Rep. 707 ; Flynn v. .lack- Kenney. 4:5 Neb. si:,, <;j x. \y. Rep. 
 
 son, 93 Va.341,25S. E. Rep 1, which 204; Marston v. Dresen, 85 Wis. 530, 
 
 do ii"i all seem to be entirelj 55 N. W. Rep. 896 : Girault v. A. P. 
 
 in point lor so broad a proposition. Iloialin^ Co., 7 Wash. 90, 34 Pac. Rep. 
 
 See Wake v. Griffin, '.) Neb. 47, 2 N. 171. 
 
 W. Rep. 461 . <).|, 41 v. Flood, 8 Ben. Chadbourn v. Williams, 45 Minn. 
 
 »n v Eveland, 26 X. .1. Eq. 294, 47 N. W. Rep. 812.
 
 §305 
 
 MINGLING PROPERTY 
 
 535 
 
 Miller, 1 and it was very properly considered that the lan- 
 guage was not to be deemed as asserting the doctrine 
 that the wife, whose moneys were so received by the hus- 
 band, ceased to be his creditor for the money so retained, 
 or forfeited by the use which she had allowed the hus- 
 band to make of the money any of her rights as creditor 
 in case of bankruptcy." If the money is received by the 
 husband as his wife's, and to be accounted for or secured 
 by him to her, he waiving his marital rights thereto, she 
 has an equitable right to the fund sufficient to sustain a 
 mortgage subsequently given to secure it, and the mere 
 
 •19 N. B. R. 496 ; Garner v. Second 
 Nat. Bk. 151 U. S. 420 , 14 S. C. Rep. 
 390. This language is employed by 
 Hopkins, J., In re Jones, 6 Biss. 68, 
 73, in deciding a motion to expunge a 
 proof of debt in bankruptcy filed by 
 a wife against a husband: "She al- 
 lowed him [the husband] to collect, 
 deposit and use the money when col- 
 lected as his own, and to enjoy the 
 credit and reputation that the recep- 
 tion and use of the money necessarily 
 gave him ; and after parties have 
 dealt with him, supposing and be- 
 lieving he was the owner of such 
 money, she cannot be heard to assert 
 her right to it, and thus defraud honest 
 creditors who have trusted him, rely- 
 ing upon the truth of appearances of 
 ownership which she permitted him 
 to present." See Briggs v. Mitchell, 
 60 Barb. (N. Y.) 317, where Potter, 
 P. J., said: " A quiet acquiescence that 
 her husband should use her estate as 
 his own, mingling it indiscriminately 
 with his own, in business, for a period 
 of from twelve to nineteen years, 
 without the recognition of its sepa- 
 rate existence by even a written re- 
 ceipt, memorandum, or separate 
 investment, and without ever having 
 during that period accounted for in- 
 
 terestor principal or even having 
 
 talked about it until the bona 
 fide creditors were aboul to call 
 for it, is a kind of trust or settle- 
 ment that cannot be recognized by 
 any rule of law or equity to stand 
 against the rights of antecedent cred- 
 itors." The arguments advanced in 
 the cases last quoted tend strongly 
 toward the repression of fraudulent 
 transfers of assets by husband to wife 
 Since the emancipation of married 
 women from the bondage of the com- 
 mon law as regards their right to hold 
 property, they have become tbe con 
 venient alienees of dishonest hus- 
 bands who are seeking to elude the 
 just claims of creditors. Nothing is 
 more natural than that courts should 
 rigidly examine, and, in proper ca8es, 
 overt urn transfers of this character. 
 
 The chief ground usually assigned, 
 that the husband gains a false credit 
 
 bythe apparent ownership and use of 
 the wife's money and property, might, 
 it seems t" us, be urged against any 
 creditor who sold personal property 
 to the debtor upon credit, reserving 
 title, or any bailor who had entrusted 
 the debtor with the temporary cua 
 tody of chattels. 
 2 See Grabill v. Mover, 05 Pa. St. 580,
 
 3 
 
 6 BOOK ENTRIES. §§ 305a, 306 
 
 lapse of time would not invalidate the security. 1 " When- 
 ever a husband acquires possession of the separate prop- 
 erty of his wife, whether with or without her consent, he 
 must be deemed to hold it in trust for her benefit, in the 
 absence of any direct evidence that she intended to make 
 a gift of it to him." 2 Some of the cases, however, dis- 
 tinguish between principal and income, and incline to 
 regard the use of the latter by the husband as implying a 
 gift of it from her. 3 Where husband and wife both own 
 a lot which they convey away for another which is con- 
 veyed directly to the wife, the creditors of the husband 
 can sell the land to satisfy their claims, but the wife is 
 entitled to the return of the amount which she con- 
 tributed toward the purchase. 4 
 
 I 305a. Book entries of transactions. — Where a husband 
 acts as the wife's agent his entries in his books of account 
 may be given in evidence against her. 5 
 
 £ 306. Marriage settlements — Amount of settlement. — 
 Marriage settlements are always watched with consider- 
 able jealousy owing to the relations of the parties and the 
 chances of fraud on creditors. 6 If the amount of prop- 
 erty settled is extravagant, or grossly out of proportion to 
 the station and circumstances of the husband, this has 
 been regarded as of itself sufficient notice of fraud. 7 In 
 an able opinion, in the case of Davison v. Graves, 8 Jus- 
 tice Nott says : " There is no case that I have seen where 
 
 1 Syracuse Chilled Plow Co. v. « Burton v. Gibson, 32 W. Va. 406, 
 
 Wing, 85 N. Y. 426; Woodworth v. 9 S. E. Rep. 255. 
 
 Sweet, 51 N. Y. 9. See Reel v. Eiv- B White v. Benjamin, 150 N. Y. 
 
 ingston, 34 Fla. 377, 16 80. Rep. 284. 264, 44 N. E. Rep. 956. 
 
 'lamer v. Second Nat. Bk., 151 « Benne v. Schnecko, 100 Mo. 250, 
 
 U. S. 433, 14 S. C. Rep. 390 ; Stickney 13 S. W. Rep. 82. 
 
 v. Stickney, 131 U. S. 227, 9 S. C. Rep. 1 Ex parte McBurnie, 1 De G., M. 
 
 677. & G. 441 ; Croft v. Arthur, 3 Dessaus. 
 
 Bauer's Estate, 140 Pa. St. 420, (S. C.) 223. 
 
 21 A 1 1 Rep. 445; McGlinsey's App., * Riley's Eq. (S. C.) 236 ; Colombine 
 
 ! 1 s. &. B (Pa I 64 ; In r< Flamank v. Penhall, 1 Sm. & G. 228 ; Bulmer 
 
 I, R., 40 ( !b. Div. 461. v. Hunter, L. R. 8 Eq. Cas. 46.
 
 § 306 MARRIAGE SETTLEMEN1 
 
 a man has been permitted to make an intended wife a 
 mere stock to graft his property upon, in order to place 
 it above the reach of his creditors. A marriage settle- 
 ment must be construed like every other instrument. 
 The question may always be raised, whether it was made 
 with good faith, or intended as an instrument of fraud." ' 
 The usual test is that the settlement must be reasonable 
 considering the grantor's circumstances. 2 If it complies 
 with this requirement it will be upheld. When a person 
 possesses a large estate, and, owing debts inconsiderable 
 in amount, makes a voluntary settlement of a part of 
 his property upon a wife and child, retaining enough of his 
 property himself to pay his existing debts many times 
 over, it would not be a fair or reasonable inference that 
 such a transaction was intended to hinder or defraud per- 
 sons to whom he happened to owe trifling debts. 5 A 
 settlement upon a wife of all a man's property exempt 
 from execution, cannot, of course, be upheld, unless the 
 marriage was not only the sole consideration for it. but 
 the agreement was entered into by the wife in ignorance 
 of her husband's indebtedness, and without knowledge of 
 circumstances sufficient to put her upon inquiry. 4 In 
 Colombine v. Penhall, 5 a celebrated English case, the 
 court said : " Where there is evidence of an intent to 
 defeat and delay 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 such a settlement." 6 
 
 See Phipps v. Sedgwick. 95 D - - hnider, 
 
 Sommermeyer v. Schwartz. ^ Y. 637 
 Wis. 71, 61 N. W. Rep. 311 ; Bohn v. rdon v. Worthier, 48 Iowa 
 
 Weeks, 50 111. App. 236. -i: J .l 
 
 rawford v. Logan. 97 II!. Bfl ' 1 Sin. & < •■ - 
 
 DeFargesv Ryland. 87 Va. 405, 12 S. 3 Bulmer v. Bunter, 1. R, - 
 
 E. Rep. 805 : Nichols v. Wallace, 41 Eq. Cas. 46. 
 
 111. App. 627.
 
 538 POST-NUPTIAL SETTLEMENTS. §§ 307, 308 
 
 § 307. Post-nuptial settlements. — The court decided, in 
 French v. Holmes, 1 that a voluntary gift by a husband to 
 his wife, if he was indebted at the time, was prima facie 
 fraudulent as to creditors 2 Davis, J., states the rule to 
 be that a voluntary post-nuptial settlement will be upheld 
 " if it be reasonable, not disproportionate to the hus- 
 band's means, taking into view his debts and situation, 
 and clear of any intent, actual or constructive, to defraud 
 creditors." 3 Mr. Justice Field observes: "A husband 
 may settle a portion of his property upon his wife, if he 
 does not thereby impair the claims of existing creditors, 
 and the settlement is not intended as a cover to future 
 schemes for fraud." * Post-nuptial settlements are pre- 
 sumed to be voluntary. 5 A settlement consummated 
 after marriage, in pursuance of an agreement entered 
 into before marriage, will be upheld against creditors, 6 
 and a voluntary conveyance for the benefit of a wife and 
 children will not be overturned at the suit of a mortgage 
 creditor who, by reason of his own laches, has lost ample 
 security. 7 An agreement by a wife to remove to and reside 
 in a particular county does not as against creditors con- 
 stitute a valuable consideration for a transfer to her, by the 
 husband. s 
 
 § 308. Purchase after marriage. - Purchases of either 
 real or personal property made by the wife of an insolvent 
 debtor during coverture are justly regarded with sus- 
 
 67 Me. L89. See De Farges v. ' Mo ore v. Page, ill U. S. 118,4 
 
 Ryland, *7 Va. 404, 12 S E. Rep. 805. S. C. Rep. 388. See Jones v. Clifton, 
 
 Otis v. Spencer, L02I11. 622; Man- 101 U. S. 225. 
 
 ning v. Riley, 52 N. J. Eq. 39, 27 Ail. r> Robbins v. Armstrong, 84 Va. 810, 
 
 Rep. 810; Massey v. fancey, 90 Va. 6 S. E. Rep, 130. 
 
 L9 3 E. Rep L84; Adams v. » Kinnard v. Daniel, 13 B. Mon. 
 
 rton, 18 Ark U9,3S W. Rep. 628. I Ky.)499. 
 
 Kehr v. Smith, 20 Wall. 85 ; Cook 'Stephenson v. Donahue, 40 Ohio 
 
 ■. Holbrook, 1 16 Mass. 66, M X. E. St. 184. 
 
 Rep 948 See Wi-u.n v. Jarvis, 9 B Radley v. Riker, 80 Hun (N. V.) 
 
 I ed. Rep. ^7 i Bonn v. Weeks, 50 111. 354, 30 N. Y. Supp. 130. 
 
 A|'|>
 
 § 3o8 
 
 PURCHASE VFTER MAKHI M.l . 
 
 
 picion, unless it clearly appears that the consideration 
 was paid out of her separate estate. 1 The community of 
 interest between husband and wife requires that purchases 
 of this character which are so often made a cover for a 
 debtor's assets, and so frequently resorted to for the pur- 
 pose of withdrawing his property from the reach of his 
 creditors and preserving it for his own use, should be 
 closely scrutinized, and in a contest between the creditors 
 of the husband and those of the wife, there is, and should 
 be, a presumption against her which she must overcome 
 by affirmative proof. This was the rule of the common 
 law, and it continues, though statutes have modified the 
 doctrine which gave the husband title to the wife's 
 personalty. 3 
 
 1 Seitz v. Mitchell, 94 U. S. 582 ; 
 Hinkle v. Wilson, 53 Md. 287 ; Simms 
 v. Morse, 4 Hughes 579 ; Knowlton v. 
 Mish, 8 Sawyer 627 ; Garrett v. Wag- 
 ner, 125 Mo. 461, 28 S. W. Re}.. 762. 
 In Hoey v. Pierron, 67 Wis. 262, 269, 
 30 N. W. Rep. 692, the court said : 
 " As to whether the debtor made and 
 executed that mortgage to his wife 
 with the intent to hinder, delay, or 
 defraud his creditors, the court 
 charged the jury that the burden of 
 proof was upon the defendant to show 
 by clear and satisfactory evidence 
 that it was made by him with such 
 intent. This is assigned as error. 
 Undoubtedly the burden of proving 
 that the mortgage to the wife was 
 given to secure an actual indebted- 
 ness to her from her husband for 
 moneys or property advanced by her 
 from her separate estate, or by some 
 other person for her use, was upon 
 the wife ; but when that was proved 
 and, in effect, admitted, it shifted 
 such burden to the defendant. Sem- 
 mens v. Walters, 55 Wis. 683, 684, 13 
 N. W. Rep. 889 ; Evans v. Rugee, 57 
 Wis. 624, 16 N. W. Rep. 49. Assum- 
 
 ing that the defendant mad'- a case 
 within the provisions of i 2319, R S., 
 which, in such case, declares that 
 ' the burden shall be upon the plain- 
 tiff to show that such mortgage was 
 given in good faith, and to secure an 
 actual indebtedness and the amounl 
 thereof,' yel it has often been held, in 
 effect, by this court that the estab- 
 lishment of such 'actual indebtedness 
 and the amount thereof," satisfies the 
 requirements of the section and shifts 
 the burden of proof to such defend- 
 ant." See § 300. 
 
 -' Seitz v. Mitchell, 94 0. - 
 583; Gamber v. Gamber 18 P 
 366; Keenev v. Good, 21 Pa si 349; 
 Walker v. Reamy, 36 Pa. St. 410 ; Par- 
 vin v.Capewell, 45 Pa Si 89 ; Robin 
 son v. Wallace, 39 Pa, St 129 ; \u 
 ,-and v. Schaffer, 43 Pa St 363; 
 Bradford's Appeal, 29 Pa. St. 518 . 
 (Mann v. Younglove, 27 Barb. I N. Y 
 isii; Edwards v. Entwisle, 2 Mackej 
 ,1). C.) 43 ; Ryder v. Bulse, 24 N J 
 372 ; Duncan v. Roselle, 15 lov 
 Cramer v. Reford, 17 N J Eq 36*3 ; 
 Elliott v. Bently, n Wis. 591. See 
 Edson v. Harden. ^> Wis.
 
 540 VALID GIFTS — ARTICLES OF SEPARATION. §§309, 310 
 
 § 309. Valid gifts. — Subsequent insolvency. — It is said in 
 a recent case in Texas, that a gift from the husband to 
 the wife is not necessarily fraudulent and void as to exist- 
 ing creditors. It might be a badge of fraud, a circum- 
 stance to be considered in determining whether the intent 
 was fraudulent, if it were shown that he was then heavily 
 in debt. But it does not follow that, because a man may 
 be indebted to an inconsiderable or even a considerable 
 amount at the time, he cannot settle a part of his prop- 
 erty upon his wife or children, provided, as we have seen, 
 he retains an ample amount of property to liquidate his 
 just debts. 1 Nor will the settlement be affected because 
 it may turn out afterward, from accident or ill-fortune, 
 that his property has perished or been swept away. 8 The 
 general rule then is that a conveyance by a husband, 
 solvent at the time, to his wife and children will be 
 supported, 3 if he retains ample means to pay his debts, 4 
 and the gift or conveyance is a reasonable one. 5 If, on 
 the other hand, the conveyance is made with the actual 
 intent of defrauding persons who may subsequently 
 become creditors, it is void as to them. 6 
 
 §310. Articles of separation. — Where a husband and 
 wife executed articles of separation by which the husband 
 bound himself to pay, in trust for his wife, a certain 
 amount of capital, and interest on it till paid, it becomes 
 a voluntary settlement if the parties become reconciled 
 
 1 Van Bibber v. Matins, 52 Tex. 5 When a partner uses firm funds 
 
 407 ; Morrison v. Clark, 55 Tex. 444. to purchase property to settle upon 
 
 See Emerson v. Bemis, 69 111. 537; his wife, creditors of the copartner- 
 
 Eindee's Lessee v. Longworth, 11 ship may pursue the property in 
 
 Wheat. 199. equity. Edwards v. Entwisle, 2 
 
 'Ibid.; Cooper, Chancellor, in Per- Mackey (D. C.) 43; Emerson v. 
 
 kins v. Perkins, 1 Trim Ch. 543. Bemis, 69 111. 537 ; Mattingly v. Nye, 
 
 Brown v. Spivey, 53 Ga. 155. 8 Wall. 370; Kesner v. Trigg, 98 U. 
 
 1 < lhambers v. Sallie, 29 Ark. 407 ; S. 54. 
 
 Kenl v. Riley, L. R. 14 Eq. Cas. 6 Wynne v. Mason, 72 Miss. 424, 18 
 
 190. S<>. Rep. 422. See §§ 93. 242.
 
 §§3 IT «3 12 STATUTE 01 FRAUDS. -|i 
 
 and again cohabit, even though there be an agreement 
 that the settlement shall stand. 1 A settlement has been 
 avoided upon this theory, where it appeared that the 
 amount of the husband's estate was $16,132, while the 
 settlement was $7,000, leaving $9,132 to meet the debts 
 confessedly due, amounting to $9,306. 
 
 §311. Statute of frauds. — In New York every agreement 
 or undertaking made upon consideration of marriage, 
 unless reduced to writing, and subscribed by the parties, 
 is void, 2 and a settlement made subsequently, in pur- 
 suance of such void agreement, is to be considered as 
 voluntary as against creditors. 3 
 
 I 312. Insurance policies.— As we have shown in New 
 York, policies of life insurance may be placed upon a hus- 
 band's life for the benefit of his wife, free from the claims 
 of creditors, 4 the annual premiums being limited. But 
 where assignments of policies, taken out by a debtor who 
 was insolvent, are made in trust for the benefit of his 
 wife, such transfers may be annulled in favor of cred- 
 itors. 5 The court, however, says in the case last cited that 
 they " do not mean to extend it to policies effected with- 
 out fraud directly and on their face for the benefit of the 
 wife, and payable to her; such policies are not fraudulent 
 as to creditors." 6 In cases where a debtor at his own 
 
 1 Kehr v. Smith. 20 Wall. 31. Co., 24 Fed. Rep. 770 ; Charter < >ali 
 
 3 Dygert v. Remerschnider, 32 N. Life Ins. Co. v. Brant, 47 Mo. 419. In 
 
 Y. 629. Michigan it was held that a policy 
 
 3 Reade v. Livingston, 3 Johns. Ch. originally taken out to the insured's 
 (N. Y.) 481 ; Borst v. Corey, 16 Barb, executors or administrators, and Bub- 
 (N. Y.) 136, and cases cited. The sequently assigned t<. the vrife, «> 
 same rule exists in Massachusetts, not protected by the statute. Ionia 
 Deshon v. Wood, 148 Mass. 132. 19 County Saw Bank v. McLean, 84 
 N. E. Rep. 1. Mich. 625, 48 N. W. Rep. L59 
 
 4 See § 23. Stokes v. Amerman, 5 Appeal of Elliott's Exrs., 50 Pa 
 121 N. Y. 337, 24 N. E. Rep. 819 ; St. 75. 
 
 Central Bank of Washington v. Hume, 6 See Thompson v. Cundiflf, I I Bush 
 
 128 U. S. 195, 9 S. C. Rep. 41 ; JEtna (Ky.)567. Compare Nippes' Appeal, 
 
 Nat. Bank v. United States Life Ins. 75 Pa. St. 478; Gould v. Emerson, 99
 
 542 COMPETENCY OF WIFE AS WITNESS. §,§313, 3 14 
 
 expense effects insurance on his life as security to a cred- 
 itor, the representative of the debtor gets title to the sur- 
 plus after the debt is paid. And if the debtor in his life- 
 time pays the debt, he is entitled to have the policy 
 delivered up to him. 1 As already shown, a man may 
 devote a portion of his earnings to insurance for the ben- 
 efit of his family. 2 
 
 >? 313. Competency of wife as witness. — On a creditor's 
 bill to set aside a conveyance of land by a husband to his 
 wife, she is regarded in Illinois as a competent witness to 
 prove the consideration of the conveyance and its good 
 faith. 3 It seems, however, to be doubted whether a wife 
 can be compelled to testify against her husband when he 
 is a co-defendant with her, if the husband objects to her 
 examination. 4 While the act of Congress 5 cut up by the 
 roots all objections in Federal courts to the competency 
 of a witness on account of interest, it is considered that 
 the statute has no application to a wife, as her testimony 
 is excluded solely upon considerations of public policy 
 and not of interest. 15 
 
 > 314. Fraudulent conveyances in contemplation of mar- 
 riage. — Alienations of real property by a man about to be 
 married, made without the knowledge of his intended 
 
 Muss. 154 ; Durian v. Central Verein, 3 Payne v. Miller, 103 111. 443. The 
 
 7 Daly (N. Y.) 171 ; Leonard v. Clin- testimony of a husband in favor of his 
 
 ton, 26 Bun <N. V.) 290; Estate of wife, on a bill to subject land in her 
 
 Henry Trough, 8 Phila. (Pa.) 214. name to the payment of his debts, 
 
 1 Re Newland, T N. B. R. ITT. Sre when not impeached, must be re- 
 Lea '■ llmtoii. 5 De G., M. & <;. 823; garded the same as thai of any other 
 Drysdale v. Piggott, 22 Beav. 238; witness having a personal interest or 
 Courtenay v. Wright, 2 ('•\t\. 337; feeling as to the matters about which 
 Morland v. Isaac, 20 Beav. 389. A.s to he testifies. Eads v. Thompson, 109 
 who should sin- to reach the proceeds 111. 87 
 
 '.f a policy where the debtor has ma < It • ' < 'lark v. Krause, 2 Mackey (D. C.) 
 
 a genera] as ignment, see Lowery v. 572. 
 
 Clinton, 32 Hun (N. Y.) 207. 'U.S. Rev. St. § 858. 
 
 'Central Bank of Washington v. " See Lucas v. Brooks, is Wall. 453. 
 Hum.'. 128 U. s. 195, 9 s. ( !. Rep. li.
 
 §314 CONTEMPLATION O* MARRIAGE. 543 
 
 bride, and with the intent and object of depriving her of 
 the rights which she would otherwise acquire in his prop 
 erty by the marriage, may, as we have already seen, 1 be 
 avoided by the wife as fraudulent. 2 In Smith v. Smith, 3 
 the chancellor said: "I am of opinion that a voluntary 
 conveyance by a man, on the eve of marriage, unknown 
 to the intended wife, and made for the purpose of defeat- 
 ing the interest which she would acquire in his estate by 
 the marriage, is fraudulent as against her." The doctrine 
 is not limited to covinous conveyances of realty, but 
 where personal property is disposed of by a colorable 
 transfer, the husband retaining a secret interest, and the 
 ultimate object being to deprive the wife of her share of 
 it, the conveyance may be avoided.' The rule is also 
 applied and enforced where the conveyance is made by 
 the husband during coverture with a like intent and pur- 
 pose. 5 Thus in Gilson v. Hutchinson 6 it appeared that 
 a mortgagor procured a sale of the mortgaged estate 
 under a power contained in the mortgage, with a view to 
 evade liabilities to his wife, from whom he had been sep- 
 arated, and to deprive her of her right of dower. The 
 court held that she could maintain a bill in equity for the 
 
 1 See § 70. 3 6 N. J. Eq. 522. 
 
 2 DeArrnond v. DeArrnond, 10 Ind. 4 See Littleton v. Littleton, 1 Dev. & 
 191; Pomeroy v. Pomeroy, 54 How. B. (N. C.) Law 327 ; Davis \. Davis, •"> 
 Pr. (N. Y.) 228; Swaine v. Perine, 5 Mo. 183: Stone v. Stone, L8 Mo. 389 ; 
 Johns. Ch. (N. Y.) 482 ; Youngs v. Tucker v. Tucker, 29 Mo. 359 ; U • 
 Carter. 1 Abb. N. C. (N. Y.) 136, n., v. MeGee, Ired. Law (N. C.) L05 ; 
 affi'd 10 Hun (N. Y.) 194; Smith v. Smith v. Smith, 22 Col. 180, 16 Pac. 
 Smith 6N. J. Eq. 515 ; Simar v. Cana- Rep. 128 : Stewart v. Stewarl 5 I lonu. 
 day, 53 N. Y. 298 ; Petty v. Petty, 4 B. 316. 
 
 Mon. (Ivy.) 215; Thayer v. Thayer. 14 See Walker v Walker, 66 N. B. 
 
 Vt.,107 ; Brown v. Bronson, 35 Mich. 390. 31 Atl. Rep. 14. 
 
 415; Smith v. Smith, 12 Cal. 217 ; 6 120 -Mass. 27. See Killinger v. 
 
 Kelly v. McGrath, 70 Ala. 7."") : Man- Reidenhauer, 6 S. & R. I Pa 531 ; 
 
 ikee v. Beard, 85 Ky. 20, 2S. W. Rep. Brewer v. Connell, 11 Humph. (Tenn.) 
 
 545 ; Smith v. Smith, 22 Col. 480, 46 500 ; Jennj v. Jenny, 24 VI 324; 
 
 Pac. Rep. 128. See b- 70. Jiggitts v. Jiggitts, 40 Miss
 
 544 
 
 CONTEMPLATION OF MARRIAGE. 
 
 § 3H 
 
 recovery of the property, both as administratrix and in 
 her own right. 1 The rule has been said to embrace con- 
 veyances made by the intended wife as well as by the 
 husband. 2 Brickell, C. J., said: " We confess an inability 
 to distinguish the ante-nuptial frauds of the husband from 
 the ante-nuptial frauds of the wife, or to perceive any 
 sound reason for repudiating and avoiding the one, while 
 permitting the other to work out its injustice and 
 injury." 3 But making a settlement of a moderate 
 amount on children of a former marriage does not con- 
 stitute fraud as to the wife. 4 Whether a conveyance 
 constitutes a fraud on the wife must depend on all the 
 circumstances of the case 5 The weight of opinion is that 
 mere non-communication to the wife is not in itself conclu- 
 sive evidence of fraud. 6 In any case such conveyance 
 can only be set aside by her to the extent of her dower 
 right. 7 
 
 1 In Littleton v. Littleton, 1 Dev. & 
 B. Law(N. C.)331. Chief - Justice Ruf- 
 fin observed: "But bona fide con- 
 veyances, that is to say, such as are 
 not intended to defeat the wife, 
 do not seem to be more than 
 within the words of the act. 
 Such are sales, to make which an 
 unfettered power is allowed the 
 husband. Such, too, appear to be 
 bona fide gifts, whereby the husband 
 actually and openly divests himself of 
 the property and enjoyment in his 
 lifetime, in favor of children or oth- 
 ers, thereby making, according to his 
 circumstances and the situation of his 
 family, a just and reasonable present 
 provision for persons having meri- 
 torious claims on him, and with that 
 view, and not with the view to defeat 
 nor for the sake of diminishing the 
 wife's dower." Compare Mcintosh v. 
 l/idd. 1 Humph. (Tenn.) 4.19; Miller 
 v. Wilson, 1.1 Ohio 108 ; Stewart v. 
 
 Stewart, 5 Conn. 317 ; Kelly v. Mc- 
 Grath, 70 Ala. 75. 
 3 Kelly v. McGrath, 70 Ala. 75. 
 
 3 See Butler v. Butler, 21 Kans. 
 522 ; Spencer v. Spencer, 3 Jones' Eq. 
 (N. C.) 404; Terry v. Hopkins, 1 
 Hill's Ch. (S. C.)l ; Williams v. Carle, 
 10 N. J. Eq. 543 ; Freeman v. Hart- 
 man, 45 111. 57 ; Belt v. Ferguson, 3 
 Grant (Pa.) 289 ; Duncan's Appeal, 43 
 Pa. St. 67; Fletcher v. Ashley, 6 
 Gratt. (Va.) 332. 
 
 4 Alkire v. Alkire, 134 Ind. 350, 32 
 N. E. Rep. 571 ; Murray v. Murray, 
 90 Ky. 1, 13 S. W. Rep. 244. 
 
 St. George v. Wake, 1 Mylne&K. 
 610 ; Strathmore v. Bowes, 2 Cox 28. 
 
 s England v. Downs, 2 Beav. 522 ; 
 ( handler v. Hollingsworth, 3 Del. 'Ch. 
 99. 
 
 1 Dudley v. Dudley, 76 Wis. 567, 45 
 N. W. Rep. 602 ; Chandler v. Hollings- 
 worth, 3 Del. Ch. 99.
 
 I 31 
 
 FRAU DULENT TK A NSF I . RS. 
 
 
 § 315. Fraudulent transfers as affecting dower. — It seems 
 to be quite clearly established ' that where a deed made 
 by a husband and wife is set aside as a fraud upon cr 
 itors, the judgment will not operate to bar the wife's right 
 of dower. The creditors cannot claim under the con- 
 veyance and against it, or ask to have it annulled as to 
 creditors and held valid as against the wife.- The theory 
 of the law is that the wife cannot release her dower in 
 her husband's real estate, except by joining with him in a 
 conveyance; 3 a release to a stranger to the title is 
 ineffectual, 4 and as the husband's deed is declared void 
 at the creditor's instigation, the wife's release falls 
 with it. 5 
 
 Dower is not barred by an assignment under the Bank- 
 rupt Act. 6 
 
 § 315a. Judgment against wife. — It has appeared 7 that, in 
 the Federal courts, a personal money judgment cannot 
 be had against a wife though she be a fraudulent alienee. 8 
 
 1 See '"Effect of Fraudulent Con- 
 veyances upon the Right of Dower." 
 5 Cent. L. J. 459, and cas^s cited. 
 
 1 Robinson v. Bates. 3 Mete. (Mass 
 40 : Summers v. Babb, 13 111. 483 ; 
 Dugan v. Massey, 6 Busb (Ky.) 81 : 
 Cox v. Wilder, 2 Dillon 47 : Wood- 
 worth v. Paige, 5 Ohio St. 70 ; 
 Richardson v. Wyman, 62 Mi 
 Hutchinson v. Boltz. 35 W. Va. 754, 
 14 S. E. Rep. 267 : Morton v. Noble, 4 
 Chic. L. X. 157; Maloney v. Horan, 
 12 Abb. Pr. (N. Y. 1 X. S 389, 49 N. Y. 
 Ill ; Lowry v. Smith, 9 Hun (N, Y. I 
 515 ; Follansbee v. Follansbee, 1 D. 
 C. App. 326 ; Miller v. Miller, 140 
 Ind. 174. 39 X. E. Rep. 547. 
 
 3 Tompkins v. Fonda. 4 Paige N 
 Y.) 448: Merchant-," Bank v. Thom- 
 son. 55 X. Y. 12. 
 
 4 Harriman v. Gray, 49 Me. 5:J7. 
 
 Munger v. Perkins, 62 Wis. 499, 
 
 22 X. W. Rep. 511 ; Bohannon v. 
 Comb>. 97 .Mo. 446. 11 S. W Rep. 
 232; Horton v. Kelly, 40 Minn. L93, 
 41 X. W. Rep. 1031 ; Hinchliffe v. 
 Shea, in:; X. Y. 155, B N E. Rep, 477: 
 Wilkinson v. Paddock. 57 Hun, 191, 
 11 X. Y. Supp. 442; afiPd 185 N. Y. 
 74-: 27 X. E. Rep. 407 A- to the 
 question whether t!i-' wife has a right 
 of dower in land paid for by her bus- 
 band but taken in tin- name of a third 
 parry, if such land is subjected to the 
 claims litors the authorities 
 
 differ - 
 6 Porter v. Lazear, L09 '" - 84, 
 
 "Phipps - k, :<"■ 1 
 
 Trust C - ck 97 U. 8 
 
 Clark v. Beecher, 154 it 8. 
 
 C. Rep. ue 
 
 JO
 
 CHAPTER XXI. 
 
 FRAUDULENT GENERAL ASSIGNMENTS. 
 
 g 316. Voluntary assignments. 
 316a. Property transferred by assign- 
 ment. 
 316b. Assent of assignee. 
 316c. Creditor's proceedings. 
 
 317. Word " void" construed. 
 
 318. Delay and hindrance. 
 
 319. Intent affecting assignments. 
 319a. Rights and duties of assignee. 
 3196. Partnership assignments. 
 
 :!J0. Fraud must relate to instru- 
 ment itself. 
 32'. Good faith. 
 
 322. Void on its face. 
 323a. Power to reform. 
 
 3226. Purchaser under void assign- 
 ment. 
 
 323. Constructive frauds defined 
 
 by Story. 
 
 324. Assignments contravening 
 
 statutes. 
 
 335. Transfers to prevent sacrifice 
 
 of property. 
 
 336. Reservations — Exempt prop- 
 
 erty. 
 :>27. Kesris in- surplus. 
 
 328. Releases exacted in assign- 
 ments. 
 
 339. Preferring claims in which as- 
 signor is partner — Rights 
 of sur\ ivor. 
 
 330. Authorizing trustee to con- 
 
 t inue business. 
 
 331. Illustrations and authorities. 
 
 '" i Delay— Sales upon credit. 
 333 I 
 
 333a. Exceptional rule. 
 
 334. Exempting assignee from lia- 
 
 bility. 
 
 335. Providing for counsel fees. 
 
 336. Authority to compromise. 
 
 337. Fraud of assignee. 
 
 338. Ignorance or incompetency of 
 
 assignee as badge of fraud. 
 
 339. Transfers inuring as assign- 
 
 ments. 
 339a. White v. Cotzhausen and con- 
 flicting cases. 
 
 340. Assets exceeding liabilities. 
 
 341. Assignments to prevent prefer- 
 
 ence. 
 
 341a. Excessive preferences. 
 
 341&. Preferences of laborers. 
 
 341c. Notice to preferred creditors. 
 
 341d. Bill of particulars. 
 
 343. Threatening to make assign- 
 ment. 
 
 343a. Antecedent agreement. 
 
 343. Construction of assignments. 
 
 344. Explaining obnoxious pro- 
 
 visions. 
 
 345. Assignments held void. 
 
 345a. Insufficient grounds of attack. 
 345&. Defeated creditor entitled to 
 
 dividend. 
 8 16. Foreign assignments. 
 346a. Assignments by corporations. 
 346b. Contingent creditors. 
 
 § 316. Voluntary assignments. —To discuss the general 
 phases of the law regulating voluntary assignments made 
 by debtors for the benefit of creditors would require a
 
 316 
 
 VOLUNTARY ASSIGNMENTS. 
 
 547 
 
 volume, 1 and is foreign to our purposes. Certain elemen- 
 tary features and principles easily traced through tin 
 multitude of cases illustrating this branch of our subject, 
 will be considered. When, as is frequently the case, 
 these assignments are mere contrivances, called into being 
 to hinder, delay or defraud creditors, and from their sur- 
 roundings, or upon their face, contravene the provisions 
 of the statute 13 Eliz. c. 5, creditors or their representa- 
 tives may attack and annul them. The principles of law 
 regulating this branch of the subject are legitimately 
 within the line of our discussion, and will, upon close 
 investigation, be found to constitute a prolific source of 
 legal controversy. It seems remarkable that the instru- 
 ment under which an insolvent surrenders up his depleted 
 estate to his creditors should be itself so frequently tainted 
 with the poison of fraud. Historically it may be stated 
 
 1 See Bur rill on Assignments, 6th 
 ed. Baker, Voorhis & Co., New 
 York. See, especially. Chapter XXV 
 of that work. See Bishop on Insol- 
 vent Debtors, 3d ed. Baker, Voorhis 
 & Co., 1895. See §§ 114. 115 of the 
 present treatise for the rules as to 
 complainants. Also, Spelman v. 
 Freedman, 130 N. Y. 427, 29 N. E. 
 Rep. 765 ; Reynolds v. Ellis, 103 N. Y. 
 115, 123, 8 N. E. Rep. 392 ; Harvey v. 
 McDonnell, 113 N. Y. 526, 531, 21 N. 
 E. Rep. 695; Matter of Cornell, 110 
 N. Y. 360 18 N. E. Rep. 142. As to 
 election to accept benefits which will 
 estop creditors from attacking an 
 assignment, see Wilson Bros. W. & 
 T. Co. v. Daggett, 9 Civ. Pro. (N. Y.) 
 408, and cases cited by McAdam, C. J. ; 
 Ryhiner v. Ruegger, 19 III. App. 162 ; 
 Groves v. Rice, 148 N. Y. 233, 42 N. E. 
 Rep. 664 ; Mills v. Parkhurst, 126 N. 
 Y. 89, 26 N. E. Rep. 1041 ; Terry v. 
 Munger, 121 N. Y. 161, 24 N. E. Rep. 
 272 ; Conrow v. Little, 115 N. Y. 387, 
 22 N. E. Rep. 346 ; Cavanagh v. Mor- 
 
 row, 67 How. Pr. (N. Y.) 211 . Levy 
 v. James, 49 Hun (N. V.) 161. 1 N. Y. 
 Supp. 604. Compare Robei 
 Winne, 144 N. Y. 70!). 39 N E. Rep. 
 631 ; Thompson v. Fry, 51 Hun (X. 
 Y.) 296, 4 N. Y. Supp. 166. In 
 Wright v. Zeigler, 70 Ga. 512, the 
 court said : " Soa creditor cannot be 
 permitted both to assail and claim 
 under an assignment ; one or the 
 other of these alternatives be musl 
 lake. His election should he made 
 
 before he commences pro- lings, 
 
 and he should not be permitted to 
 await tin' result of his suit in order 
 to make his flection. This would !»■ 
 unfair to others claiming under the 
 assignment." Compare Haydock v. 
 Coope, 53 N. V. (is. \ creditor 
 may be estopped from impeaching 
 an assignmenl by accepting bene- 
 fits under it. Groves \. Rice, it^ 
 N. Y. '.':;.;. 12 X. E Rep. )'>'''! ; Mills 
 v. Parkhurst. 120 X. Y. 89, 26 N E. 
 Rep. KHl.
 
 54 8 
 
 VOl UNTARY ASSIGNMENTS. 
 
 §316 
 
 that an assignment for the benefit of creditors has been 
 characterized as a recent American device, though this 
 statement has been challenged. 1 The word assignment 
 is sometimes used with reference to the instrument which 
 affects the transfer, and is sometimes applied to the trans- 
 fer itself considered as a legal effect or result." The 
 validity of the assignment is generally determined, as 
 we shall see, by the common law, 3 and the instrument 
 will, as a rule, be favored where equality of distribution 
 of assets is attempted. 4 
 
 It may be recalled, as a preliminary to exploring this 
 field, that to constitute a general assignment there must 
 be an element of trust, 5 and the conveyance must be vol- 
 untary. 6 Voluntary assignments, for the benefit of cred- 
 
 1 Dunham v. Waterman, 17 N. Y. 
 9-15 ; G rover v. Wakeman, 11 Wend. 
 (N. Y.) 187, 216. 
 
 2 Richardson v. Thurber, 104 N. Y. 
 610, 11 N. E. Rep. 138; Berger v. 
 Varrelmann, 127 N. Y. 289, 27 N. E. 
 Rep. 1065. 
 
 3 Schroder v. Tompkins, 58 Fed. 
 Rep. 672 : Johnson v. Sharp, 31 Ohio 
 St. 611. 
 
 4 Reed v. Mclntyre, 98 U. S. 507 ; 
 Mayer v. Hellman, 91 U. S. 496 ; 
 Boese v. Kin-, 108 U. S. 379, 2 S. C. 
 Rep. 765 ; Commercial Nat. Bank v. 
 Nebraska State Bank, 33 Neb. 292,50 
 X. W. Rep. L57. 
 
 5 Hine v. Bowe, 46 Hun (N. Y.) 196; 
 Brown v. Guthrie, 110 N. Y. 435 ; 
 Fecheimer v. Robertson, 53 Ark. 101, 
 1:; S. W. Rep. 423; May v. Tenney, 
 1 is r. s. 66, 13 S. C. Rep. 491 ; Box 
 v. Goodbar, 54 Ark. 6. 14 S. \V. Rep. 
 925. 
 
 •' 1 -wis v. Miller, '.';; Weekly Dig. 
 (N. V.i 195. hi Brown v. Guthrie, 
 IK) N. Y 111, 18 X E. Rep. 254. 
 Finch, J., said: "The view of the 
 case which prevailed with the Gen- 
 
 and the agreement which led to 
 it, taken together, amounted to a 
 general assignment by an insolvent 
 debtor, which was void because it re- 
 served to him a possible surplus at 
 the expense of unpaid creditors, and 
 the right to make preferences subse- 
 quent to the conveyance. If the 
 basis of the reasoning be sound, the 
 result reached was a proper infer- 
 ence ; but we are not satisfied that 
 the mortgage and agreement 
 amounted to a general assignment 
 by the debtor. In form it was an 
 absolute sale upon a chattel mortgage 
 given for a fixed and agreed con- 
 sideration ; and while, nevertheless, 
 such a sale, in spite of its form, may 
 In' proved to be an assignment in 
 trust (BrittoTi v. Lorenz, 45 X. Y. 51), 
 yet, in the present ras<\ we are un- 
 able to discover any such proof. The 
 material and essential characteristics 
 of a general assignment is the pres- 
 ence of a trust. The assignee is 
 merely trustee, and not absolute 
 owner. He buys nothing and pays 
 nothing, but takes the title for the 
 performance of trust duties. There
 
 §3 l6 VOLUNTARY ASSIGNMENTS. 549 
 
 itors, have been defined to be transfers of property to an 
 assignee, in trust, to apply the same in payment of debts 
 and return the surplus to the debtor. 1 The requisite of 
 good faith must appear. 2 A general assignment may be 
 made in the absence of a statute. 3 The assignment 
 is not a creature of the statute, but the voluntary act of 
 the debtor, regulated by the statute as to details in its 
 execution. 4 
 
 The assignment is the exercise of the absolute dominion 
 which a person possesses over his own property. 5 In 
 Thrasher v. Bentley, 6 Folger, J., said : "The act of i860 
 does not give the right to make an assignment in favor 
 of creditors, with or without preferences. The right 
 exists at common law, and if exercised honestly, and with 
 no design to hinder, delay or defraud creditors, does not 
 require the act of i860 to warrant it. The act of i860 is 
 a statute, not of creation, but of direction. It recognizes 
 the existence of the power in the citizen to make an 
 assignment of his property to trustees, for the benefit of 
 his creditors, and does no more than prescribe the mode 
 in which the power shall be used, and furnish some safe- 
 guards against abuse." The general scope and object of 
 the statute " was to secure a faithful application of the 
 debtor's assets, under the terms and provisions of the 
 assignment, and in that way to protect both debtors 
 
 was no such element in the trans- * Wright v. Lee, 2 S. Dak. 596, 51 
 
 action between these parties. The N. W. Rep. TOG. 
 
 purchaser became absolute owner, 3 Tompkins v. Hunter, 111* N. Y. 
 
 and paid or secured the full amount 121, 43 N. E. Rep. 532; Weider v. 
 
 of his mortgage.'* See Warner v. Maddox, 66 Tex. 372, 1 S \V. Rep. 
 
 Littlefield, 89 Mich. 329, 50 N. W. 168. 
 
 Rep. 721. 4 See Sanger v. Flow, 48 Fed. Rep. 
 
 1 Weber v. Mick, 131 111. 533, 23 N. 152. 156 ; Baer v. Rooks, 50 Fed Rep. 
 
 E. Rep. 646. See Ginther v. Richmond, 898,901; Thompson v. Rainwater, 49 
 
 18 Hun (N. Y.) 232. A power of attor- Fed. Rep. 406. 
 
 ney cannot be converted into an as- B Brashear v. West, 7 Pet. 614. 
 
 signment. Beans v. Bullitt, 57 Pa. St. 6 1 Abb. X. C. I N. V. 1 43. 
 221; Banning v. Sibley, 3 Minn. 389.
 
 550 VOLUNTARY ASSIGNMENTS. § 3 I 6 
 
 and creditors against the waste, improvidence, negligence 
 and infidelity of the assignee, in the execution of the 
 trusts created by it." ' The property in possession of 
 the assignee i s not in custodia legis? for the reason that 
 the assignee is not technically an officer of the court, 3 
 but is a trustee, bound to account according to the terms 
 of the instrument itself, and his authority depends upon 
 the validity of the assignment, and is not technically con- 
 ferred by the court. 4 Some cases consider him a quasi 
 public officer, 5 in so far as the statutes regulate his 
 procedure. 
 
 The assignee derives his power from the assignment, 
 which is both the guide and measure of his duty, is the 
 language of some of the cases. 6 It is the chart which he 
 must follow. 7 Beyond that instrument or outside of its 
 terms he is, ordinarily, powerless and without authority. 
 The control of the court over his actions is limited in the 
 same way, and can only be exercised to compel his per- 
 formance of the stipulated and defined trust, and protect 
 the rights which flow from it. He distributes the pro- 
 ceeds of the estate placed in his care according to the dic- 
 tation and under the sole guidance of the assignment, and 
 the statutory provisions merely regulate and guard his 
 exercise of an authority derived from the will of the 
 assignor. The courts, therefore, cannot direct him to pay 
 a debt of the assignor, or give it preference in violation 
 
 People ^.Chalmers, I llnuiN*. Y.) ; But see Farwell v. Cohen, 138 111. 
 
 686, affd. 60 \. Y. L54. 216, 28 N. E. Rep. 35, 32 Id. 893. 
 
 - ■ Lehman v. Rosengarten, 23 ' Adler v. Erker, 1 MK'rary 257. 
 
 Fed Rep. 642; Stafo exrel. Enderlin s Levy's Accounting, 1 Abb. X.C 
 
 State Bk. v. Rose, I N. Dak.819,52 X. (N. Y.) 187; Nichols v. McEwen, 17 
 
 \v. Rep. 614 : Mattbewsv. Ott,87 Wis. \. V 22, 27. 
 
 399; B. C. sub nom. Tnre Morgan, 58 "Citizens" Hank v. Williams. 128 
 
 N.W. Rep ;?i. In [owaand Minne- N. Y. 77,28 X. E. Rep. 33; Matter of 
 
 sota, a contrarj rule prevails. Ham- Hevenor, 144 X. Y. 273, 39 X. E, Rep. 
 
 ilton Brow n Shoe I '<-. v. Mercer, 84 393. 
 
 Iowa 587, 51 X. W. Rep. 415; Second 7 Middleton v. Taber, 46 S. C. 355, 
 
 Nat. Bk. v. Schrauck, 48 .Minn. 88, 44 24 S. E. Rep. 282. 
 X W. Rep. 542.
 
 §316 VOLUNTARY ASSIGNMENTS. 551 
 
 of the terms of the assignment and the rights of other 
 creditors under it. To hold the contrary would be to put 
 the court in the place of the assignor, and assert a right 
 to modify the terms of the assignment, after it had taken 
 effect, against the will of its maker, and to the injury of 
 those protected by it. The assignee is merely the repre- 
 sentative of the debtor and must be governed by the 
 express terms of his trust. 1 The assignee is required to 
 recognize and pay only claims which could be ascertained 
 and fixed at the time when the assignment was made.~ 
 The parties cannot change the terms of the instrument, 3 
 or withdraw the property from the jurisdiction of the 
 court, or absolve the assignee from its control. Nor can 
 the assignor substitute a successor if the assignee resigns. 
 The new appointment must be made by the court. 4 
 
 Under a valid assignment the assignee, having pos- 
 session of the goods taken in pursuance thereof, has a 
 valid title to them as against the claims of subsequent 
 attaching creditors. 5 There must, of course, be a change 
 of possession to satisfy the statute, or the presumption 
 of fraud in the transfer will arise." 
 
 1 Finch, J., in Matter of Lewis, 81 209; Butler v. Wendell. 57 Mich. 62, 
 N. Y. 424. See Nicholson v. Leavitt, 23 N. W. Rep. 460 ; May v. First Nat. 
 6 N. Y. 519. Where, therefore, the Bank. 122 111. 556, 13 X. E. Rep. 806; 
 debts set out in the assignment are Smith's Appeal, 104 Pa. St. 381; 
 fictitious or excessive, this may be a Chafee v. Fourth Nat. Bank. 71 Me. 
 ground for setting aside the assign- 514 : Goflin v. Kelling, 83 Ky. 649 ; Eg- 
 ment, and the debts cannot be re- bert v. Baker 58 Conn. 319, 20 At I. 
 duced to the proper amount, and the Rep. 466 : Receiver of State Bk. v. 
 assignment as thus modified sus- First Nat. Bk., 34 N. J. Eq. 450; 
 tained. Roberts v. Victor, 130 N. Y. Thurston v. Rosenfield 42 Mo. 474. 
 585, 29 N. E. Rep. 1025. 8 McConihe v. Derby, 62 Hun (N. Y.) 
 
 2 Matter of Hevenor, 144 N. Y. 274, 90, 16 N. Y. Supp. 474 ; Ball v. Loomis, 
 39 N. E. Rep. 393. 29 N. \ r . 412 ; South Danvers Nat. Bk. 
 
 3 See § 322a. v. Stevens, 5 App. Div. (N. Y.) 892, 
 4 Chapin v. Thompson, 89 N. Y. 39 N. Y. Supp. 298; Mcllhargj v. 
 
 280. Chambers, 117 N. V. 532, 23 X. E. 
 
 5 Schroder v. Tompkins, 58 Fed. Rep. 561 ; Cram v. Mitchell, 1 Sandf. 
 
 Rep. 676; Barnett v. Kinney, 147 U. Ch. (N. Y.) 251. 
 
 S. 476, 13 S. C. Rep. 403; Frank v. 'Compare Mcllhargy v. Chambers, 
 
 Bobbitt, 155 Mass. 112, 29 N. E. Rep. 117 N. Y r . 532, 23 N. E, Rep. 561
 
 552 PROPERTY TRANSFERRED. §3'6a 
 
 In Mills v. Parkhurst, 1 Gray, J., in explaining the gen- 
 eral characteristics of these voluntary conveyances, said: 
 •• The assignment is not like a gift of property upon con- 
 ditions, open to the acceptance or rejection of the donee. 
 It is a payment by the assignor of his debts upon his own 
 plan. The deed of assignment is in no sense a contract 
 between the debtor and his creditors, and it does not 
 depend for its validity in law upon their assent. It is a 
 means or mode which the statute permits to be adopted 
 by an insolvent debtor, for the distribution of his estate 
 among his creditors, and so long as he has acted without 
 fraud, in fact or in law, and has complied with the pre- 
 scriptions of the act, his conveyance to an assignee for 
 the purposes stated therein, will stand and be effective." 
 
 >? 316a. Property transferred by assignment. — I he discus- 
 sion has already embraced the authorities declaring what 
 assets creditors may reach by bill or other proceeding. 2 
 As creditors are frequently forced practically to accept 
 as payment of their claims whatever the assignee is able 
 to realize from the property, it is important to know what 
 estate is acquired by such voluntary transfer. Every 
 interest to which the personal representatives of a 
 deceased person could succeed may pass by a properly 
 framed assignment. 3 The assignee may acquire title to 
 a claim for conversion ; ' may gain a right to recover in 
 
 '126 N Y 89, 94. 26 N E. Rep. nients of government claims, see Taft 
 
 1041. v. Marsily, 120 N. V. 474, 24 N. E. 
 
 'See Chap. II Rep. 926 ; Bachman v. Lawson, 109 
 
 9ee Zabriskie v. Smith, 13 N V. U. S. 659, 3 S. C. Rep. 479 ; Leonard 
 
 385. See Bishop on Ensol. v. Nye, 125 Mass. 455 ; Heard v. Stur- 
 
 Debtors, / 1 18 : Norfolk & W. R. R. gis, 146 Mass. 545. 16 N. E. Rep. 437. 
 Co. v Read,87 Va. L85, L2 S. E. Rep. 4 Whittaker v. Merrill, 30 Barb. (N, 
 
 395 Property forfeited to the gov- Y.i 389; Richtmeyer v. Remsen, 38 
 
 eminent does not pass to the assignee, N. Y. 206 ; Sherman v. Elder, 24 N. 
 
 and a Bubsequenl remission <>f 1 he for- V. 381 ; McKee v. Judd. 12 N. Y. 622 ; 
 
 feiture will nol inure to the benefit of Man maun v. Jefferson, 4 Misc. (N. Y.) 
 
 the assignee. Ward v. Webster, 9 147, 23 N. Y. Supp. 085. 
 Daly (N Y.i 182. But, as to assign-
 
 §3i6a 
 
 PROPERTY TRANSFERRED. 
 
 553 
 
 replevin, 1 and to sue a common carrier for the loss of 
 goods. 2 He takes judgments, 3 moneys deposited in 
 bank, 4 and lands 5 which belonged to the assignor. In 
 Warner v. JafTray, 6 the court said : " The assignment was 
 a mere voluntary conveyance, and can have no greater 
 effect, so far as passing title to the property assigned, 
 than any other conveyance. 7 In New York State by 
 statute the assignee is clothed with power to assail fraudu- 
 lent alienations of property made by the assignor. 8 
 Rights of action for personal torts which die with the' 
 person are not assignable ; !t as, for instance, damages for 
 an assault and battery, 10 and false imprisonment ; n so the 
 title to trust property does not pass ; l2 nor does property 
 in transit; 13 nor a wife's dower right; 11 nor exempt 
 property. 15 
 
 It is, of course, as we shall see, fraudulent for the 
 assignor to withhold assets from the assignee. 16 
 
 1 Jackson v. Losee, 4 Sandf. Cli. 
 (N. Y.) 381. 
 
 • Merrill v. Grinnell, 30 N. Y. 594; 
 McKee v. Judd, 12 N. Y. 622 ; Jordan 
 v. Gillen, 44 N. H. 424. 
 
 3 Emigrants' Ind. Sav'gs Bank v. 
 Roche, 93 N. Y. 374. 
 
 4 Beckvvitli v. Union Bank, 9 N. Y. 
 211. 
 
 6 Matter of Marsh, 3 Cow. (N. Y.) 69. 
 
 * 96 N. Y. 254. 
 
 1 Bank of Commerce v. Payne, 86 
 Ky. 446, 8 S. W. Rep. 856. 
 
 H Southerd v. Benner. 72 N. Y. 424 ; 
 Spring v. Short, 90 N. Y. 538 ; Ball v. 
 Slaften, 98 N. Y. 622 ; Fort Stanwix 
 Bank v. Leggett, 51 N. Y. 552 ; Mat- 
 ter of Raymond, 27 Hun (N. Y.) 508 ; 
 Matter of Cornell, 110 N. Y. 360, 18 
 N. E. Rep. 142. The assignee cannot 
 divest himself or be divested of his 
 right to sue for assets so long as the 
 trust continues. Stanford v. Lock- 
 wood, 95 N. Y. 582. 
 
 9 People v. Tioga Common Pleas, 
 19 Wend. (N. Y.) 73 ; Brooks v. Han- 
 ford, 15 Abb. Pr. (N. Y.) 342 ; Hodg- 
 man v. Western R. R. Co., 7 How. Pr. 
 (N. Y.)492; Cent. R. R. & B. Co. v. 
 Brunswick & W. R. R. Co., 87 Ga. 
 386, 13 S. E. Rep. 520. 
 
 10 See Pulver v. Harris, 52 N. Y. 7:; . 
 Bishop on Insol. Debtors, ^ 143. 
 
 11 Hunt v. Conrad, 47 Minn. 557, 50 
 N. W. Rep. 614. 
 
 15 Kip v. Bank of New York, 1(1 
 Johns. (N. Y )63. 
 
 13 Lacker v. Rhoades, 51 N. Y. (ill. 
 
 14 Dimon v. Delmonico, 35 Barb. 
 (N. Y.) 554. 
 
 : ■ Heekman v. Messinger, 49 Pa. St. 
 465; Baldwin v. Peet, 22 Tex. 708; 
 Smith v. Mitchell. 12 .Midi. L80 
 
 16 Coursey v. Morton, 182 N. Y. 
 556, 30 N. E. Rep. 231. Shultz v. 
 Hoagland, 85 N. Y. 464.
 
 534 ASSENT OF A.SSIGNEEE. ^3l6b 
 
 The assignment, it may be here recalled, takes effect 
 from the time of its delivery, 1 and the instrument should 
 be so construed as to give effect to the intention of the 
 parties. 2 The recording of the instrument is not a 
 necessary prerequisite to the vesting of the title to the 
 assigned property in the assignee. 3 
 
 £ 316b. Assent of assignee. — To render the transfer 
 effectual, the assignee must accept the trust. In New 
 York State his assent to act as assignee must be acknowl- 
 edged. After some controversy it has been decided' that 
 the assent may be written or contained on a paper sepa- 
 rate from the assignment itself. 1 Without the assent of 
 the assignee the assignment is void. 5 In Scott v. Mills," 
 the court says : " No form of consent is prescribed, and 
 no place for its appearance in the assignment is desig- 
 nated, and the statute is fully satisfied by an appear 
 ance of assent in the instrument." T 
 
 Where the assignment is made to more than one 
 assignee, all who accept must act. 8 
 
 1 Nieoll v. Spowers, 105 N. Y. 1, l Franey v. Smith, 125 N. V. 41. 25 
 
 11 N. E. Rep. 138 ; Warner v. Jaffray, N. E. Rep. 1079. 
 
 90 N. Y. 248 ; Dutchess County 5 Rennie v. Beau, 24 Hun (N. Y.) 
 
 Mutual Ins. Co. v. Van Wagonen, 132 123 ; Crosby v. Hillyer, 24 Wend. (N. 
 
 N. Y. 398, 30 N. E. Rep. 971. " Deliv- Y.) 284 : Lawrence v. Davis, 3 McL. 
 
 ery is as essential since the statute of 177: Pierson v. Manning, 2 Mich, 
 
 assignments as before its passage. It 462. 
 
 is the final act without which all 6 45 Hun (N. Y.) 264, affi'd 115 N. 
 othei formalities arc ineffectual, and Y. 376, 22 N. E. Rep. 156. 
 the real date of the instrument is the 'The assignment "must be in 
 time of its delivery." Mcllhargy v. writing and acknowledged, and the 
 Chambers, 1 17 N. Y. 539, 23 N. E. assignee must assent thereto in writ- 
 Rep. 561 ; Betz v. Snyder, 48 Ohio St. ing. and when it has thus been exe- 
 192, 88 X. E. Rep. 234. cuted and delivered, it takes effect, 
 
 - Kmi.-nmt hid. Savings hank. v. and the title to the property passes to 
 
 Roche, '•»:; N. Y. 374. the assignee." Warner v. Jaffray, 98 
 
 Winner v. Jaffray, 96 N. Y. 248; N. Y. 252. 
 
 Ryanv. Webb, 39 Hun (N. Y.) 435 ; 8 Brennan v. Willson, 7 Daly(N.Y.| 
 
 Franej v. Smith, 125 N. Y 19, 25 N. 59; affi'd, 71 N. Y. 502. 
 I. Rep. 1079 Pancoast v. Spowers, 
 20 J. & s. (N. Y.) 528.
 
 §§3160-318 creditor's proceedings. 
 
 D33 
 
 § 316c. Creditor's proceedings. The creditor, feeling 
 aggrieved by an assignment, may proceed by action claim- 
 ing the right to set it aside, and also institute supple- 
 mentary proceedings. 1 The fact that the examination of 
 the debtor may disclose the fraudulent character of the 
 assignment is not a valid reason for declining to answer 
 questions on the examination, 3 and a refusal to testify 
 may be punished as a contempt:' In New York the 
 assignee may be directed to account before a referee. 4 
 
 § 317. Word "void" construed. — The distinction between 
 void and voidable acts is constantly arising. The term 
 " void " is often interpreted to mean nothing more than 
 " voidable," and this construction is especially true as 
 applied to voluntary assignments. 5 Though the statute 
 in characterizing assignments constantly uses the term 
 " void as to creditors," it is obvious that " nothing more 
 is intended than inoperative or voidable;"" or, as was 
 observed by Chief-J jstice Shaw, " such conveyance is not 
 absolutely void, but voidable only by creditors." 7 It is 
 the distino-uishinor characteristic of a void act that it is 
 incapable of ratification, but an assignment which is 
 fraudulent upon its face is capable of confirmation by 
 creditors, 8 and is good between the parties, hence it is 
 not, logically speaking, void. 
 
 §318. Delay and hindrance. — Mr, Burrill says: 9 "The 
 term delay has an obvious reference to time, and hindrance 
 
 1 Matter of Sickle, 52 Hun (N. Y.) ,; Per Redfield, Ch. J., in Merrill v. 
 
 527, 5 N. Y. Supp. 703 : Schloss v. Englesby, 28 Vt. 155. 
 
 Wallach, 38 Hun (N. Y.) 638, 102 N. 'Edwards v. Mitchell, 1 Gray 
 
 Y. 683. (Mass.) 241. 
 
 - Lathrop v. Clapp, 40 N. Y. 328. s See White v. Banks. 21 Ala. 713. 
 
 8 Lathrop v. Clapp, 40 N. Y. 328: Compare Hone v. Henriquez, 13 
 
 Tremain v. Richardson, 68 N. Y. 617. Wend. (N. Y.) 242 ; Geisse v. Beall, 8 
 
 J Produce Bank v. Morton, 67 N. Wis. 367. 
 
 Y. 199 ; Myers v. Becker, 95 N. Y. 486. 9 Burrill on Assignments, § 335. 
 
 6 See Burrill on Assignments, § 319.
 
 556 DELAY AM) HINDRANCE. § 318 
 
 to the interposition of obstacles in the way of a creditor; 
 but, to a certain extent, the one involves and includes the 
 other. In point of fact, and as actually applied by the 
 courts, they are always taken together. The following 
 are prominent instances in which assignments have been 
 declared void on the ground of hindrance and delay. 
 Where the time of sale, 1 or of collection by the assignee, 2 
 or of finally closing the trust, 3 has been, by the terms of 
 the assignment, unreasonably or indefinitely postponed ; 
 where the assignee has been expressly authorized to sell 
 at retail, and on credit, 4 or on credit simply ; 5 where the 
 assignment has been made with a view to prevent a sacri- 
 fice of the property ; 6 where the proceeds of the assigned 
 property have been directed to be used in defending all 
 suits which might be brought by creditors to recover their 
 debts, 7 and where creditors who should sue have been 
 expressly debarred from the benefit of the assignment ; 8 
 or postponed until all the other creditors are paid. 9 All 
 these were instances of delaying and hindering creditors 
 in the prosecution of their remedies in the strict sense of 
 the terms used in the statute." In the famous Sprague 
 litigation it is said that a debtor has no right to postpone 
 or put in peril the claims of his creditors without their 
 consent, and that a conveyance which attempts so to do, 
 or which is executed for the purpose of depriving cred- 
 itors of their right to enforce their just claims against the 
 
 'Citing Hafiicr v. Irwin, 1 Ired. 6 Citing Van Nest v. Yoe, 1 Sandf. 
 
 (N. C.) Law, 4'JO. Ch. (N. Y.i 4; Vernon v. Morton, 8 
 
 •Citing Storm v. Davenport, 1 Dana (Ivv.) 217. But see Cason v. 
 
 Sandf. Ch. (N. Y.) 185. Murray, 15 Mo. 378. 
 
 'Citing Arthur v. Commercial & 'Citing Planck v. Schermerhorn, 
 
 I; I; Bk., L7Miss.394. 3 Barb. Ch. (N. Y.) 644 ; Mead v. 
 
 4 Citing Meacham \ Sternes, 9 Phillips, 1 Sandf. Ch. (N. Y.) 83. 
 
 Paige (N. Y.) 398, 406. - Citing Spence v. Bagwell, GGratt. 
 
 I iting Barney v. Griffin, . N. Y. (Va.)444; Berry v. Riley, 2 Barb. (N. 
 
 865; Nicholson v. Leavitt, 6 N. Y. Y.) 307. 
 
 510. » Citing Marsh v. Bennett, 5 Mc- 
 
 Lean 117.
 
 §319 INTENT AFFECTING ASSIGNMENTS. 557 
 
 property of their debtor, by placing it beyond their reach 
 or control for an unlimited, indefinite, or uncertain period, 
 is in conscience, as well as in law, fraudulent. 1 An 
 assignment or transfer with intent to delay the collec- 
 tion of a debt is condemned by the statute and the com- 
 mon law, no less than a transferor assignment into which 
 the element of actual fraud enters. 2 
 
 § 319. Intent affecting assignments. — " It is clear, how- 
 ever," says Mr. Burrill, " from the language of the Eng- 
 lish statute of 13 Elizabeth, that its provisions were 
 directed exclusively against conveyances made with an 
 actual intent? on the part of debtors, to hinder, delay or 
 defraud creditors, as distinguished from the mere effect ox 
 operation of such conveyances. The expressions in the 
 preamble — ' devised and contrived' ' to the end, purpose, 
 and intent to delay,' etc., leave no room for doubt on this 
 point. Hence, it has sometimes been very expressively 
 designated as the ' statute against fraudulent intents in 
 alienation.' " 4 It will be presently shown that the learned 
 writer has stated the rule too broadly, for a fraudulent 
 intent is often imputed by the law in cases where the 
 assignor's motives were undoubtedly honest. 5 Generally 
 speaking the subject of inquiry in these cases is the intent 
 of the assignor or debtor, 6 at the time of the execution of 
 
 1 De Wolf v. Sprague Mfg. Co., 49 23 Minn 242, 1 Am. Insol. Rep. 36 
 
 Conn. 325. Peck v. Crouse, 40 Barb. (N. Y.) 157 
 
 - Buell v. Rope. G App Div. (N. Putnam \ . Hubbell, 42 N. Y. 106 
 
 Y.) 115, 39 N. Y. Supp. 475. Citing Rubl v. Phillips, 48 N. Y. 125 : Lesher 
 
 McConnell v. Sherwood, 84 N. Y. 530. v. Getman, 28 Minn. 93, 9 N. W. Rep. 
 
 3 See Moore v. Stege, 93 Ky. 27, 18 585 : Jaeger v. Kelley, 52 N. Y. 274 ; 
 S. W. Rep. 1019. Dudley v. Danforth, 61 N. Y. 626 ; 
 
 4 Burrill on Assignments, § 332. State ex rel. Enderlin State Bk. v. 
 
 5 See §§ 8, 9, 19, 322. Kose, 4 N. Dak. 325, 58 N. W. Rep. 
 
 6 Wilson v. Forsyth, 24 Barb. (N. 514; Rouse v. Bowers, 108 N. C. 182, 
 Y.) 120; Mathews v. Poultney, 33 12 S. E. Rep. 985; Main v. Lynch, 54 
 Barb. (N. Y.) 127; Griffin v. Mar- Md. 658; Forbes v. Waller, 25 N. Y. 
 quardt, 17 N. V. 28 ; Cuyler v. McCart- 439. " An assignee for the benefit of 
 ney, 40 N. Y. 221 ; Bennett v. Ellison, creditors stands in the place of the
 
 558 
 
 INTENT AFFECTING ASSIGNMENTS. 
 
 § 3 '9 
 
 the instrument, 1 though there is a growing line of authority 
 tending to establish the rule that the fraudulent purpose 
 sufficient to defeat or overturn the instrument must be par- 
 ticipated in by the assignee, trustee 3 or beneficiaries. 3 The 
 latter idea is certainly gaining ground. The testimony 
 of both the assignor and assignee upon the question of 
 intent is proper. 4 Recognizing the general rule, else- 
 
 assignor, and is so affected with hie 
 intent, thai if it is unlawful the in- 
 strument cannot stand." Tabor v. 
 Van TasseU, 86 N. V. 643. See g 316. 
 In Ailler v. Ecker, 1 McCrary 356, 
 the court remarks that the only intent 
 which will dot ermine the validity of 
 an assignment is that of the assignor, 
 at the time it is mad'', and contem- 
 poraneous fraudulent acts are evi- 
 dence of this intent. It is then 
 observed of the case under consider- 
 ation, that it is in proof that one E. 
 being insolvent, and owing debts 
 amounting to more than double the 
 value of bis assets, took from his busi- 
 ness, within four weeks before bis 
 assignment, a sum equal to one-half 
 of the value of the property assigned, 
 
 and with it erected a building upon a 
 lot owned by his wife. Within a 
 short time then-after he joined with 
 
 1n> wife in giving a mortgageupou 
 
 this property to bis father-in-law. for 
 
 three times the amount of any debt 
 owing either by him or his wife, and 
 i In- mortgage and accompanying 
 notes wer,- senl to the father-in-law, 
 without any request on his pari, or 
 any information on t be subject, until 
 the papers were receu ed. The court 
 comment upon the fact that there is 
 no <-\ jdi nee to counteract or explain 
 why the mortgage was given for so 
 large a Bum, after one-fourth of the 
 debtor's entire assets had been taken 
 from In- business in the manner 
 
 Stated, and under circumstances cal- 
 
 culated to show an intent to put a 
 portion of his available means beyond 
 the reach of his creditors, and arrive 
 at the conclusion that the assignment 
 was fraudulent and void. 
 
 Shultz v. Hoagland, 85 N. Y. 464 ; 
 Hardmann v. Bowen, 39 N. Y. 200. 
 
 2 Baer v. Rooks. 50 Fed. Rep. 901 ; 
 Emerson v. Senter, 118 U. S. 3, 6 S. 
 C. Rep. 981. 
 
 3 See Thomas v. Talmadge, 16 Ohio 
 St. 433: Governor v. Campbell, 17 
 Ala. 566 ; Byrne v. Becker, 42 Mo. 
 264; Abercrombie v. Bradford, 16 
 Ala. ."WO ; State v. Keeler, I!) Mo. 548 ; 
 Wise v. Wimer. 23 Mo 237; Mandel 
 v. Peay, 20 Ark. 329: Penn's Execu- 
 tor v. Penn, 88 Va. 361. 13 S. E. Rep. 
 7* » 7 : Zell Guano Co. v. Heatherly. 
 38 W. Ya. 410, 18 S. E. Rep. 611 : 
 Porter v. James, 30 U. S. App. 260; 
 Pettit v. Parsons, 9 Utah 223, 33 Pac. 
 Rep. 1038: Peters v. Bain, 133 U. S. 
 670, Ut S. ('. Rep. 354. See Emerson v. 
 Scute,-. 118 U. S. 3, 10, 6 S. C. Rep. 
 
 '. S|, where the court says : "It the 
 intentional omission by the grantor 
 of certain property from his schedule, 
 and his appropriation of it to his own 
 Use, was such a fraud as wotdd vitiate 
 
 the deed where the assi^ne ■ the 
 
 preferred creditors have previous 
 notice of E.uch omission, that result 
 cannot happen when they were igno- 
 rant of the fraud at t he time they ac- 
 cepted the benefit of the conveyance." 
 1 Forbes v. Waller, 25 N. Y 48». 
 Sec g 205. While it is proper to allow
 
 §3 [ 9 INTENT AFFECTING ASSIGNMENTS. 559 
 
 where discussed, that a voluntary conveyance or gift may 
 be annulled at the instigation of creditors, without proof 
 of an absolute fraudulent intent on the part of the donee, 1 
 it would seem to follow by analogy that the cases which 
 hold that proof of the fraudulent intent of the debtor or 
 assignor is sufficient, establish the more logical and salu- 
 tary rule. In a case which arose in New York it was 
 expressly decided that an assignment by a debtor, with 
 the intent to hinder or defraud creditors, may be avoided 
 although the assignees were free from all imputation of 
 participation in the fraudulent design, and were them- 
 selves bona fide creditors of the assignor.'-' In Loos v. 
 Wilkinson, 3 Earl, J., said: "An innocent assignee may 
 not be permitted to act under a fraudulent assignment. 
 .... It may be true that in a particular case an honest 
 assignee may .... undo all the fraudulent acts of the 
 assignor preceding and attending the assignment and the 
 preparation of the schedules under it. Yet, if the assign- 
 ment was made by the assignor with the fraudulent intent 
 condemned by the statute, the assignment may be set 
 aside at the suit of judgment-creditors, and all powers of 
 the assignee, however honest he may be, taken away. 
 In assailing a voluntary assignment for the benefit of 
 creditors, it is important only to establish the fraudulent 
 
 parties to testify as to their intentions, ticipation in the fraud intended by the 
 
 yet as against third parties in aeon- assignor. The uprightness of his in- 
 
 troversy as to whether a paper is an tentions, therefore, will not uphold 
 
 assignment or a mortgage, they can- the instrument, if it would others ise, 
 
 not be allowed to testify as to what for any reason, be adjudged fraudu- 
 
 they had in mind in executing the lent and void." Griffin v. Marquardt, 
 
 paper. Appolos v. Brady, 49 Fed. 17 N. Y. 30. See Loos v Wilkinson. 
 
 Rep. 401. 110 N. Y. L95, is X. E. Rep. 99 ; Starin 
 
 ■See §200. v. Kelly, 88 N. Y. 418, and compare 
 
 *Rathbun v. Plainer, 18 Barb. (N. Sipe v. Earman, 26 Gratt. (V&.) 570. 
 Y.) '272. "An assignee in trust for :; 110 N. Y. 209, is X. K. Rep. 99. 
 
 the benefit of creditors is not ' a pur- Sees. C. again 113 N. Y. 485, '.'1 N. E. 
 
 chaser for a valuable consideration,' Rep. 392. 
 however innocent lie may be of par-
 
 560 RIGHTS OF ASSIGNEE. § 319a 
 
 intent of the assignor, 1 and when that has been established 
 the assignment may be set aside, and creditors may then 
 pursue their remedies and procure satisfaction of their 
 judgments as if the assignment had not been made." 
 Mere suspicion of a fraudulent intent is not enough to 
 sustain an action to set aside an assignment. 2 
 
 There should be evolved from the decisions a distinc- 
 tion between cases where the assignee is honest and where 
 he has been guilty of bad faith. Where the trust estate 
 has come into the hands of an honest assignee, the reasons 
 upon which it may be overturned should be restricted. 
 The technical grounds of assault upon this convenient 
 form of liquidating an insolvent estate should be circum- 
 scribed, and the struggles of sharp attorneys to gain 
 preferences for unconscionable clients by overturning 
 these transfers on unsubstantial grounds should be 
 repressed. The guiding consideration with the courts 
 should be the general welfare of the body of creditors 
 and the safety of the assets. 
 
 § 319a. Rights of assignee — An assignee acting in per- 
 fect good faith under an assignment, subsequently declared 
 fraudulent, will be protected from personal liability, 3 and 
 need not account a second time for moneys paid out in 
 good faith to creditors. 4 The assignee is not necessarily 
 bound to take goods ordered by the assignor, 5 and is 
 without power to proceed with the performance of the 
 
 1 Citing St.irin v. Kelly, 88 N. Y. Y. 397, 22 N. E. Rep. 1031 : Smith v. 
 
 H8. Wis... 132 N. V. 172, 30 N. E. Rep. :i*4 : 
 
 McClure v. Goodenough, 19 Civ. Wilson v. Marion. 147 X. Y. 589, 42 
 
 Pro. (N. V. 191, 12 N. Y. Supp. 459. N. E. Rep. 190. 
 
 Rouse v Bowers, 108 N. C. 182, 12 'Sullivan v. Miller, 106 N. Y. 643, 
 
 S 1:. Rep 985: Burrill on Assign- 13 X. E. Rep. 772; Wakeman v. 
 
 in. nt-, f.ii, ed., |>. 567, Baydock Car- Grover, 4 Paige (X. Y.) 28; Young v. 
 
 Co. v Pier, 7* Wis. aTii, 47 X. Brush, 28 X. V. t;71 ; Ames v. Blunt, 
 
 \V. Rep. 945; Barney v. Griffin, 4 5 Paige (N. Y.) 13. 
 
 s. m. It Ch. 1 X. Y.i 552; Hawlej \ 'Compare ''lark v. Dickinson, 74 
 
 .Ian,.-, if. Wend. iN. Y.i 182; Nat. X. Y. 17. 
 Butchers & It. I'.k. v. Hnl.li.4l. 117 X.
 
 § 319a RIGHTS 01 ASSIGNEE. 561 
 
 assignor's incomplete contracts, yet if he does so without 
 the sanction of the court, or the parties beneficially inter- 
 ested, and sues for such performance, the defendant may 
 counterclaim damages. 1 For the purposes of completing 
 such a contract, the matter must be treated as a transaction 
 had with the assignee as an individual. 2 It may be further 
 recalled that goods obtained by the assignor by the prac- 
 tice of fraud may be taken from the assignee, as the lat- 
 ter does not, according to the weight of authority, occupy 
 the position of a purchaser for value. 3 But demand for 
 such goods should precede any action to recover them 
 from an innocent assignee. 4 
 
 The obligations of an assignee for the benefit of cred- 
 itors are those which appertain to voluntary trustees, not 
 acting gratuitously, without compensation. They are 
 bound to exercise that degree of diligence which persons 
 of ordinary prudence are accustomed to use in their own 
 affairs. 5 The trust fund should not be used for the indi- 
 vidual benefit of the assignee, or mingled with other 
 money, 6 or expended except for the care of the property 
 and its conversion into cash." Where the assignee is a 
 party to the fraud which results in overturning an assign- 
 ment, he will not be allowed for expenses incurred in 
 defending himself 8 or commissions. 9 The assignee 
 
 'Patton v. Royal Baking Powder 777: Nat. Butchers and Drovers' 
 
 Co.. 114 X. Y. 1, 20 N. E. Rep. 631. Bank v. Hubbell, 117 N Y. 384, 398, 
 
 'Patton v. Royal Baking Powder 22 X. E. Rep. 10:31. 
 
 Co., 114 X. Y. 5, 20 N. E. Rep. 621. 5 Matter of Cornell, 110 X. V 
 
 See Thompson v. AYhitmarsh. 100 X. is X. E. Rep. 142. See Matter of 
 
 Y. 35, 2 X. E. Rep. -273. Buckland v. Barnes, 140 X. Y. 488, 35 X. E. Rep. 
 
 Gallup, 105 N. Y. 453. 11 X. E. Rep. 653. 
 
 843. 5 Matter <>f Barnes. 140 X. V. W8, 
 
 3 See Raymond v. Richmond. 7* X. 35 X. E. Rep. 653. 
 
 Y. 351 ; Chaffee v. Fort, 2 Lans. (N. '• Matter of Dean. 86 X 7. 398. 
 
 Y.)81. -Smith v Wise, 132 X. Y. 172. 30 X. 
 
 4 Good win v. Wertheim^r. 99 X. Y. E. Rep. 229. 
 
 I X. E. Rep. 404; Converse v. »Slingluff v. Smith. 7'. Ml 
 
 Sickles, 140 X. Y. 207, 40 X. E Rep. Atl. Rep. 674 
 
 36
 
 562 
 
 PARTNERSHIP ASSIGNMENTS. 
 
 3I9b 
 
 takes the debts or choses in action subject to the right of 
 set-off. 1 The equitable rule as to set-off may also be 
 compelled against the assignee. 2 Where several persons 
 accept the trust they must act together. 3 
 
 § 319b. Partnership assignments. —The distinction be- 
 tween individual and copartnership creditors must be 
 preserved, 4 especially where the possibility of an attempt 
 to pay individual creditors with partnership assets is 
 present. 5 In some cases it is declared absolutely that a 
 transfer of partnership property to an individual creditor 
 of one of the partners when the firm is insolvent is fraud- 
 ulent as to partnership creditors, 6 but it seems the con- 
 verse of the proposition is not true," for an assignment 
 of individual assets for the benefit of firm creditors will 
 usually be upheld. 8 Evidently the theory upon which the 
 cases proceed is that the appropriation of firm assets to 
 individual debts is a fraud upon the partner who does not 
 owe the debt, and also violates the equitable rule as to the 
 marshalling of assets. The solvency of the partnership is 
 
 1 Jordan v. Nat. Shoe and Leather 
 Bank. 74 X. V. 471 : Martin v. Kunz- 
 muller, ■!? X. V. 396; Myers v. Davis, 
 ■2 -J X. Y.489. 
 
 *See Bughitt v. Hayes, 136 X. V. 
 L63, 32 X. E. Rep. 706. Compare 
 Fera v. Wickham, 1:;."") X. Y. 223, 31 
 \ I. Rep. 1028. 
 
 Thatcher v. Candee, 1 A.bb. Dec. 
 N ST.) 387 ; Anon. v. Gelpcke, 5 Hun 
 ( X. Y. I 245, 255 : Brennan v. Willsdn, 
 •1 Abb. X. ('. (X. Y.) 279. 
 
 ■ Peters v. Bain, 133 U. S. 670, 10 
 s. < '. Rep. 354 : Nordlinger v Ander- 
 son, L23 N. V. .-.II. 25 N. E. Rep. 
 992. 
 
 v. Hume, 72 Hun (X. Y.) I, 
 
 25 N Y. Su|)|». 576; Wilson v. Rob- 
 
 ertson, 21 N. Y. 587 ; I',. pons v. Marion, 
 
 Y. 541, '-".1 N. E. Rep. 832 ; 
 
 Lord v. Devendorf , r,4 Wis. 495, 11 N. 
 W. Rep. 903. 
 
 6 Erb v. West (.Miss.) 1!) So. Red 
 829: Hill v. Draper, 54 Ark. 395. 15 
 S. W. Rep. 1025; .Marks v. Bradley, 
 il'.i Miss. 1. 10 So. Rep. 922; Nord- 
 linger v. Anderson, 12:; X. Y. 5 is. 
 25 N. E. Rep. 992: Wilson v. Rob- 
 ertson, 21 N. Y. 587. 
 
 'Crook v. Rindskopf, 105 N. Y. 
 176, 12 X. E. Rep. Ill : Saunders v. 
 Reilly, 105 X. Y. 12. 12 X. E. Rep 
 
 170; Rover Wl 1 Co. v. Fielding, 
 
 101 X. Y. 504, 5 N. E. Rep. 131. 
 
 • Crook v. Rindskopf, 105 N. Y. 
 476, 12 N. E. hep. 174 : Erb v. Wesl 
 (Miss.) p.) So. Rep. 829; co/itra .lack- 
 son v. ( 'ornell, 1 Sandf. Ch. (N. Y.) 
 348. See O'Neil v. Salmon, 25 How. 
 I'r. (.V Y.) 246.
 
 3i9 b 
 
 PARTNERSHIP ASSIGNMENTS. 
 
 563 
 
 an issuable fact l in insolvency cases. The court will 
 resent schemes to defraud a firm's creditors.' On the other 
 hand, firm creditors cannot set aside as fraudulent a vol- 
 untary transfer of property of an individual partner unless 
 the firm assets are deficient and there are no individual 
 creditors. 3 The respective powers of the partners in 
 assignment cases have been a subject of much con- 
 troversy. Only leading characteristics will be noticed. 
 An insolvent surviving partner may make an assignment 
 embracing both partnership 4 and his individual prop- 
 erty. 5 In Illinois, in the absence of proof of a crisis in 
 the affairs of the firm, two general partners cannot make 
 an assignment in the absence of the assent of the third 
 partner. 6 Ordinarily the partners must all join in an 
 assignment." A special partner need not unite, 8 nor a 
 party who may possibly be liable as a partner as regards 
 third parties. 9 A limited partnership cannot in New 
 York assign with preferences. 10 A partner has no right 
 to make a general assignment because his copartner is 
 
 1 McDonald v. Cash. 45 Mo. App. 
 66. 
 
 5 Kelley v. Flory, 84 Iowa 671,51 N. 
 W. Rep. 181 ; Smith v. Smith, 87 Iowa 
 93, 54 X. W. Rep. 73 : Baer v. Wil- 
 kinson, 35 W. Va. 422, 14 S. E. Rep. 1 ; 
 Roe v. Hume, 72 Hun (X. Y.) 1, 25 X. 
 Y. Supp. 576 : Booss v. Marion, 129 X. 
 Y. 536 ; 29 N. E. Rep. 832 ; Dura 11 1 v. 
 Pierson, 124 X. Y. 444. 26 X. E. Rep. 
 1095 ; Xordlinger v. Anderson, 123 X. 
 Y. 544, 25 X. E. Rep. 992 ; Wilson v. 
 Robertson, 21 X. Y. 587. 
 
 3 Hull v. Deering, 80 Md. 424, 31 
 Atl. Rep. 416. 
 
 4 McFarland v. Bate. 45 Kan. 7, 25 
 Pac. Rep. 238. 
 
 5 Hanson v. Metcalf, 46 Minn. 25. 
 48 X. W. Rep. 441 ; Riley v Carter, 
 76 Md. 581, 25 Atl. Rep. 667 ; Williams 
 v. Whedon, 109 X. Y. 333, Hi X. E. 
 Rep. 365; Haynes v. Brooks, 116 X. 
 
 Y r . 487, 22 X. E. Rep. 1083 : Emerson 
 v. Seuter, 118 U. S. 3. 6 S. C. Rep. 981 ; 
 Durant v. Pierson. 124 X. Y. 452, 
 26 X. E. Rep. 1095 : Beste v. I 
 17 Abb. X. C. (X. Y.) 162, affi'd 110 
 X. Y. 644. 17 X. E. Rep. 734. 
 
 ' Trumbull v. Union Trust I 
 111. App. 319. 
 
 : Kellogg v. Cayce, 84 Tex. 213. 
 lit S. W. Rep. 388 ; Fox v. Curtis. 176 
 Pa. St. 52. 34 Atl. Rep. 952; Welles v. 
 March, 30 X. Y. 350; Klumpp v. 
 Gardner, ill X". Y. 158,21 X. E. Rep. 
 99; Gates v. Andrews, 37 X Y. 659. 
 
 B Tracy v. Tuffey, 134 U. S. 200, 10 
 s. C. Rep. 527. 
 
 9 See Adee v. Cornell. 93 X. Y 572, 
 affi'g25Hun (X. Y > 
 
 hwartz v. Soutter, 103 X. V. 
 683, X. E. Rep. 448. s. • 
 Grant, 97 X. Y. 263
 
 564 
 
 IK \WI>. 
 
 § 320 
 
 temporarily insane. 1 But where one partner absconds 
 those remaining- may assign for the benefit of creditors. 2 
 And where after dissolution the firm assets have been 
 transferred in good faith to one of the late partners as 
 an individual, he may assign for the benefit of his 
 individual creditors.'' The omission to convey indi- 
 vidual property in a partnership assignment may 
 invalidate the instrument, 1 though this conclusion has 
 been denied. 5 The certificate of acknowledgment of an 
 assignment executed by one member of a firm need not 
 state that the partner was authorized to sign his co- 
 partners' names to the instrument. The assignment will 
 be upheld if in fact he had such authority/' Oral 
 assent of the non-joining partners is good. 7 The assent 
 may be shown in a variety of ways. 8 
 
 >J 320. Fraud must relate to instrument itself. — Where it 
 is sought to annul a fraudulent transfer, the evidence 
 must ascertain and establish the assignor's intent at the 
 time of the execution of the instrument. 10 If the assicrn- 
 
 1 Stadelman v. Loehr, 47 Hun (N. 
 Y.) 327: Friedburgher v. Jaberg, 20 
 AM,. N. C. (N. Y.) 279. 
 
 2 Welles v. March, HO N. Y. 344 ; 
 National Bank of Balto. v. Sackett, 
 2 Daly >X. Y.) 395; Palmer v. My- 
 ers, 13 Hail,. iX. Y. 509; Kelly v. 
 Baker, 2 Hilt. (X. Y.) 531. See 
 Khun])]) \. Gardner. 114 N. Y. 153, 
 21 X. E. Rep. 9.1. 
 
 3 See Dimon v. Hazard, 32 N. Y. 
 
 65 : Stanton v. Westover, 101 X. V. 
 265, I X. E. Rep 529. 
 
 Kennedy v. McKee, I 12 r. S. 
 606, 12 s. C. Rep. 303 ; Still v. Fooke, 
 
 66 Tex. 715, 2 s. W. Rep. 59 ; Coffin 
 v. Douglas, 61 Tex. 106, 107. 
 
 Bradley v. Bischel, 81 [owa 80, 46 
 X. w. Rep. 755 ; McFarland w Bate, 
 45 Kan I, 25 Pac. Rep. 238. 
 
 Hooper \ Baillie, 1 18 X. 5 . U3, 
 H6 -•■; X. E. Rep, 569 . Klumpp v. 
 
 Garduer, 114 N. Y. 160, 21 X. E. Rep. 
 99 ; National Bank of Troy v. Scriven, 
 63 Hun (N. Y.) 375, is X. Y. Supp. 
 277. 
 
 'Hooper v. Baillie. 118 N. Y. ID'., 
 23 X. E. Rep. 569. See Sullivan v. 
 Smith, 15 Neb. 476, 19 X. \Y. Rep. 
 620; Rumery v. McCulloch, 54 Wis. 
 565, 12 N. W. Rep. 65. 
 
 •Klumpp v. Gardner, 114 X. Y. 
 157. 21 X. E. Rep. 99. 
 
 'Cuyler v. McCartney. 40 X. Y. 
 221; Olney v. Tanner, 10 Fed. Rep. 115. 
 
 " Shultz v. Hoagland, 85 X. Y. 467 : 
 Mathews v. Poultney, 33 Barb. (N. 
 Y.) 127; Beck v. Parker. 65 Pa. St. 
 262; Bailey v. Mills, 27 Tex. 434-438; 
 Cornish v. Dews, 18 Ark. 172; Klapp 
 v Shirk. 13 Pa. St. 589; Owen v. 
 
 Aivis. ■!<; \ .1. Law22; Hill v. W 1- 
 
 berry, 1 C. C. A. 206, 49 Fed. Rep. 
 138.
 
 § 3 2 ° FRAUD. 565 
 
 merit was valid in its creation, having been honestly and 
 properly executed and delivered, no subsequent illegal 
 acts, either of omission or commission, can in any man- 
 ner invalidate it. 1 The subsequent acts should, however, 
 be considered, as they "may reflect light back upon the 
 original intent," and help to characterize and discern it 
 more correctly/ It may be observed that neither 
 conveyances without consideration, nor other frauds com- 
 mitted by a failing debtor prior to a general assignment 
 for the benefit of his creditors, will operate to make it 
 void as matter of law. These are circumstances which 
 may be taken into consideration by a court and jury, if 
 nearly contemporaneous, but are not conclusive of a 
 fraudulent intent. 3 To render the assignment invalid, 
 when good on its face, the fact of a fraudulent intent in 
 making it must be legitimately found from evidence that 
 will fairly support the finding, and it must also be an 
 intent to commit a fraud on creditors by making- the 
 assignment, and not by some entirely iudepe?ident act 
 which might and probably would have been done precisely 
 as it was, had no assignment been made or contemplated. 4 
 
 1 Hardmaiin v. Bowen, 39 N. Y. for its recovery, and, if successful, it 
 
 200 ; English v. Friedman, 70 Miss. will be for the benefit of the creditors 
 
 457, 12 So. Rep. 252. In Estes v. precisely as if it had been included in 
 
 Gunter, 122 IT. S. 455, 7 S. C. Rep. the assignment." 
 
 1275, the court says: "The assign- - Shultz v. Hoagland, 85 N. Y. 468; 
 
 ment was subsequent to the deed and McNaney v. Hall, 80 Hun (X. V. ) 415, 
 
 carried all that could in any way be 33 N. Y. Supp. 518. 
 
 considered as a benefit secured by the 3 Livermore v. Northrup, 44 X. Y. 
 
 deed to the assignor. The creditors 111; Probsl \. Welden, 4(i Ark. ins 
 
 were not, therefore, in any way 4 Wilson v. Forsyth, 24 Barb X. Y. > 
 
 hindered or defrauded by the alleged 12S. In Aaronson v. Deutsch, 24 
 
 reservation. There is nothing in Fed. Rep. 166, the court said : "The 
 
 Gunter's payment to his wife of the rule which the defendant seeks in 
 
 ), which can affect the validity of invoke, thai a deed valid in its incep- 
 
 the assignment. . . . . A fraudu- tion will not lie rendered invalid \<\ 
 
 lent disposition of property does not any subsequent fraudulent or illegal 
 
 of itself impair a subsequent general act of the parties, has no application 
 
 assignment. The assignee may sue where the fraudulent or illegal art is
 
 566 FRAUD. § 320 
 
 A fraudulent disposition of property invalidates a subse- 
 quent assignment only when the deed is actually part of 
 a scheme to defraud creditors. 1 Proof of an intentional 
 omission from the schedules of assigned property, of 
 items of valuable property, is sufficient to establish a 
 fraudulent intent. Referring to this subject, Finch, J., 
 said : " The intentional omission, calculated to deceive, 
 and to lull into slumber and inactivity the interest and 
 diligence of the creditor, would plainly argue a fraudu- 
 lent purpose Not so, however, if shown to have been 
 unintentional, and the result of accident or oversight. It 
 would be hard to find any schedules absolutely perfect, 
 or any debtor who could inventory every item of his 
 property with strict accuracy. Room must be allowed 
 for honest mistake, and possibly even for careless and 
 thoughtless error; but, where the omission cannot thus 
 be explained or excused, the inference of a fraudulent 
 intent must follow." 2 Preferring fictitious claims will 
 constitute a ground for attacking an assignment on the 
 ground of fraud. 3 The motive to prevent creditors from 
 gaining a preference will of course not avoid the assign- 
 ment. 4 It may be here remarked that if an assignment 
 is made in the form and manner provided by law, and 
 duly recorded so as to pass all the property of the 
 assignor, it is difficult to see how the motive existing in 
 the assignor's mind can affect its validity. If in morals 
 the motive be a bad one, yet in law it produces no for- 
 bidden result. In so far as it hinders or delays creditors 
 it is a lawful hindrance and delay, and cannot be held 
 
 the consummation of an illegal agree- Sec Baird v. Mayor, etc., of N. Y., 90 
 
 men! made contemporaneously with N. Y. 593. Beardsley v. Frame, s "> 
 
 tli.' deed." < Sal 134, 24 Pac. Rep. 721 . 
 
 Hill v. Woodbury, l C C. A 306, Roberta v. Vietor, 130 N. V. 586, 
 
 49 Fed. Rep. 138; Baer v. Rooks, 2 29 N. E. Rep. 1025. 
 C. C A.. 76, 50 Fed. Rep. 898. k See § 341. Borwitz v. Ellinger, 
 
 Shultz i Eoagland, 85 N. t . 169. 33 M<l. 504.
 
 §§ 3 2I, 322 GOOD FAITH. 567 
 
 fraudulent. The commission of a lawful act is not made 
 unlawful by the fact that it proceeded from a malicious 
 motive. 1 
 
 §321. Good faith. — The term "good faith,"- if inter- 
 preted to mean " sincerity or honesty of purpose,' 1 can 
 scarcely be applied in that sense to voluntary assign- 
 ments, for these instruments are often annulled from con- 
 siderations of public policy in cases where nothing was 
 more foreign to the intention of the debtor than a dis- 
 honest design considered as an emotion. The usual pre- 
 sumption of honesty and good faith incident to acts and 
 transactions generally, 3 appertains to a voluntary assign- 
 ment, and the instrument will be upheld where the lan- 
 guage contained in it justifies a construction which will 
 support it. 4 A mere mistake in the making of the inven- 
 tory will not invalidate an assignment. 5 
 
 § 322. Void on its face. — An assignment for the benefit 
 of creditors may undoubtedly contain a clause so plainly 
 indicative of the fraudulent intent pointed out by the 
 statute, or recognized by the policy of the law, '' as to 
 carry its death-wound upon its face." An instance of this 
 might be a gratuitous provision out of the assigned prop- 
 erty for the insolvent assignor or his family. The New 
 
 1 Wilson v. Berg, 88 Pa. St. 172, 6 Roberts v. Buckley, 115 N. Y. 315, 
 
 1 Am. lnsolv. Rep. 109 ; Jenkins v. 39 N. E. Rep. 9GG. 
 
 Fouler, 24 Pa. St. 3')8 ; Fowler v. 6 Nightingale v. Harris, 6 R. I. 329 ; 
 
 Jenkins, 28 Pa. St. 176; Glendon Iron criticised in Gardner v. Commercial 
 
 Co. v. Uhler, 75 Pa. St. 467; Smith Nat. Bank, 13 R. 1. 155. Danforth, 
 
 v. Johnson, 76 Pa. St. 191. J., said, in McConnell v. Sherwood. 
 
 • See Wood v. Conrad, 2 S. Dak. 84 N. Y. 526: '■ Where, upon the face 
 
 334, 50 N. W. Rep. 95. of an assignment or by proof aliunde, 
 
 3 See §§5, 6, 224, 271. it appears to have been made with in- 
 
 4 Tovvnsend v. Stearns, 32 N. Y. tent to hinder <>r delay creditor-, it 
 209, 218; Brainerd v. Dunning. :!<> affords no protection to the a — 1. 
 
 N. Y. 211 ; Campbell v. Woodworth, against a sheriff, who seeks to enforce 
 
 24 N. Y. 304; Shultz v. Hoagland, 85 by execution a judgment against the 
 
 N. Y. 464 ; Coyne v. Weaver, 84 N. Y. debtor." 
 386, and cases cited .
 
 POWER TO REFORM. § 322a 
 
 York cases clearly establish the rule that where the 
 assignment shows upon its face that it must necessarily 
 have the effect of hindering and defrauding the creditors 
 of the assignor, it is conclusive evidence of a fraudulent 
 intent, and may be avoided. 1 The actual motive, emotion 
 or belief of the debtor in such cases is immaterial. 
 Where it is apparent from the face of the instrument 
 itself that it is a conveyance to the use of the assignor, 
 it is the duty of the court trying the cause to tell the 
 jury, as a matter of law, that the conveyance is fraudulent 
 as against creditors.' 3 In the case of Dunham v. Water- 
 man, 3 Mr. Justice Selden, referring to the opinion of the 
 Court of Errors, in Cunningham v. Freeborn, 4 remarked : 
 " It follows from the reasoning of Mr. Justice Nelson, 
 which I regard as unanswerable, that wherever an assign- 
 ment contains provisions which are calculated per se to 
 hinder, delay or defraud creditors, although the fraud 
 must be passed upon as a question of fact, it nevertheless 
 becomes the duty of the court to set aside the finding, if 
 in opposition to the plain inference to be drawn from the 
 face of the instrument. A party must in all cases be held 
 to have intended that which is the necessary consequence 
 of his acts." 5 
 
 § 322a. Power to reform. — It seems clear on principle 
 and authority that an assignment void on its face cannot 
 be reformed by an action so as to cut off a lien of a 
 judgment recovered after the execution of the illegal 
 
 Kavanagh v. Beckwith, 44 Barb. s. p. Bigelow v. Stringer, 40 Mo. 205, 
 
 (N. Y i Vxi : Goodrich v. Downs, 6 and cases cited . 
 
 Hill (N. Y.) lis See Wakeman v. * Bigelow v. Stringer, 40 Mo. 205. 
 
 Dalley, 44 Barb. (N V. 1 503, affi'd 51 » 17 N. Y. 9, 21. 
 
 N. V. 27 : Griffin v. Marquardt, 21 N. * 11 Wend. (N. Y.) 840-351. 
 
 Y 121 ; Coleman v. Burr, 93 X. Y. 81. See opinion of Ingraham, J., in 
 
 See Marks v. Bradley, 69 Miss. 1, 10 Wakeman v. Dalley, 44 Barb. (N. Y.i 
 
 Rep 922: Weis v. Dittman, 4 Tex. 503; Gere v. .Murray, 6 Minn. 305. 
 
 Civ. A 1 -i .. 35, 28 S. W. Hep. 229 ; Rilev See §§ 9, lo. 
 v 1 larter, 76 Bid. 581, 25 Ail. R< p. 667;
 
 §§ 322b, 323 PURCHASER UNDER VOID ASSIGNMENT. 
 
 assignmen tand before its reformation. 1 A clerical error 
 in an assignment where the true meaning of the instrument 
 cannot be doubted will not avoid it, and no reformation 
 is essential. 2 
 
 § 322b. Purchaser under void assignment. — An assignee 
 under an assignment that might be declared fraudulent 
 and void as to creditors may nevertheless convey a 
 good title to a purchaser for valuable consideration who 
 had no notice of the fraud of the assignor. 3 As else- 
 where shown, an assignee will be protected, as regards 
 acts done in good faith, before any other creditor has 
 secured a lien. 4 
 
 §323. Constructive frauds denned by Story — "By con- 
 structive frauds," observes Mr, Justice Story, "are meant 
 such acts or contracts as, although not originating in any 
 actual evil design or contrivance to perpetrate a positive 
 fraud or injury upon other persons, are yet, by their tend- 
 ency to deceive or mislead other persons, or to violate 
 private or public confidence, or to impair or injure the 
 public interests, deemed equally reprehensible with posi- 
 tive fraud, and therefore are prohibited by law, as within 
 the same reason and mischief as acts and contracts done 
 malo animo"* Again the commentator says: "Another 
 class of constructive frauds upon the rights, interests, or 
 duties of third persons, embraces all those agreements 
 and other acts of parties, which operate directly or virtually 
 to delay, defraud, or deceive creditors. Of course we 
 
 'Sutherland v. Bradner. 116 N. Y. 2 Smith v. Bellows, 3 N. Y. State 
 410, 416, 22 N. E. Rep. 554 ; Whitaker Rep. 305. Compare Fairchild v. 
 v. Gavit. 18 Conn. 522; Whitaker v. Lynch ,-42 N. Y. Super. .265. 
 Williams, 20 Conn. 98; Farrow \. Wilson v. Marion, 117 N. Y. 589, 
 Hayes, 51 Md. 504. In Van Winkle 42 N. E. Rep. 190. 
 v. Armstrong, 41 N. J. Eq. 402, 5 Atl. * Nat. Butchers' <S D. Bk. v. Hub- 
 Rep. 449. -i bill was filed to rectify an bell, 117 N. Y. 397, 22 N. E. Rep. 1081. 
 assignment by inserting words of in- See § 319a. 
 heritance therein. The suit was be- 5 1 Story's Eq. Jur. r 358 
 fore the court on motion.
 
 5;o ASSIGNMENTS CONTRAVENING STATUTES. §324 
 
 do not here speak of cases of express and intentional 
 fraud upon creditors, but of such as virtually and indi- 
 rectly operates the same mischief, by abusing their confi- 
 dence, misleading their judgment, or secretly undermining 
 their interest. It is difficult, in many cases of this sort, 
 to separate the ingredients which belong to positive and 
 intentional fraud, from those of a mere constructive 
 nature, which the law pronounces fraudulent upon princi- 
 ples of public policy. Indeed, they are often found mixed 
 up in the same transaction." ' 
 
 § 324. Assignments contravening statutes. — I he burden 
 rests upon the attacking party to point out the illegal 
 provision, or to establish the dishonest purpose in the 
 assignment. 2 It may be stated, as a general rule, that 
 an assignment which contravenes the provisions of a 
 statute, or vests the assignee with a discretion contrary 
 to the terms of an express provision of law, and authorizes 
 him to effect sales of the assigned property in a manner 
 not permitted by the statute, will be declared void.' This 
 principle is learnedly discussed in a case in the Supreme 
 Court of the United States. 4 The assignment provided 
 as follows : " The party of the second part [the assignee] 
 shall take possession of all and singular the property and 
 effects hereby assigned, and sell and dispose of the same, 
 either at public or private sale, to such person or persons, 
 for such prices and on such terms and conditions, either 
 for cash or upon credit, as in his judgment may appear 
 best and most for the interest of the parties concerned, 
 
 '1 Story's Eq. Jur. §349. Q. B. 618; Jackson v. Davison, 1 
 
 Roberta v. Buckley, 145 N. Y. 215, Barn. & Aid. 691 : Miller v. Post, 1 
 
 39 N. E. Rep. 966. Allen (Mass.) 434; Parton v. Hervey, 
 
 Jaffray v. MoGhee, L07 IT. S. 361- 1 Gray (.Mass.) 119; Bathaway v. 
 
 365, .' s. ( '. Rep. :;ii7 ; < lollier v. Davis, Moran, 44 Me. 67. 
 
 IT Ark. :;<;'.). I S. W. Rep. 684. See * Jaffray v. McGb.ee, 107 U. S. 861, 
 
 Peck v. Burr, 10 N. Y. 394; Mac- 2 S. C. Rep. 367. 
 - 1 \. Dover <\ Deal R. R. Co., 18
 
 §324 ASSIGNMENTS CONTRAVENING STATUTES. 3JI 
 
 and convert the same into money. It will be observed 
 that the assignment did not, by its terms prevent the 
 assignee, in the administration of his trust, from fol- 
 lowing the directions of the statute in all particulars. 
 Counsel contended that the assignment was valid 
 (i) because the discretion given the assignee by the 
 assignment left him at liberty to follow the law, and 
 (2) because even if the assignment required him to 
 administer the trust in a manner different from that pre- 
 scribed by law, only such directions as conflicted with 
 the law would be void, and the assignment itself would 
 remain valid. The Supreme Court of the United States, 
 however, did not adopt this view, but followed the local 
 construction given to the assignment law of Arkansas by 
 the Supreme Court of that State in Raleigh v. Griffith, 1 
 to the effect that such an assignment was void as to cred- 
 itors, and held that the construction put upon the law by 
 the highest court of the State where the assignment was 
 made, was binding on the courts of the United States. 2 
 The substance of the opinion in Raleigh v. Griffith, 8 is 
 that the statute is disregarded in the deed of assignment, 
 the assignee being authorized to sell at private or public 
 sale, and for cash or on credit. The assignee was vested 
 with a discretion to prolong the closing of the trust for 
 an indefinite period. The legislature having deemed it 
 expedient, as a matter of public policy, to require an 
 assignee for the benefit of creditors, to sell the property 
 within a specified time and prescribed manner, the dis- 
 senting creditors are not barred by a deed made in direct 
 contravention of a plain provision of the statute. 1 he 
 provisions of the statute are mandatory and not director),' 
 
 1 37 Ark. 153. Branch Lumber Co. v. 011. 142 I' S. 
 
 *Brashear v. West, 7 Pet. 608; 622, 12 S. C. Rep. 318. See § 71. 
 Sumner v. Hicks, 3 Black 532 : Left- ; :'.7 Ark. 15:;. 
 
 ingwellv. Warren, 2 Black 599; South 'See French v. Edwards, 18 Wall. 
 
 506.
 
 572 SACRIFICE ''I PROPERTY. 5*3-5 
 
 and it follows, in the words of Mr. Justice Woods, that 
 an assignment ''which vests the assignee with a dis- 
 cretion contrary to the mandates of the statute, and in 
 effect authorizes him to sell the property conveyed 
 thereby in a method not permitted by the statute, must 
 be void, for contracts and conveyances in contravention 
 of the terms or policy of a statute will not be sanctioned." ' 
 
 £ 325. Transfer to prevent sacrifice of property. — Super- 
 fluous recitals as to the intention with which the volun- 
 tary conveyance was made sometimes prove fatal to the 
 paper. In German Insurance Bank v. Nunes~ the 
 material part of the deed read : " That whereas, the said 
 first party is indebted to sundry persons in various sums, 
 amounting in the aggregate to about thirty-eight thousand 
 dollars, and is the owner of a large amount of assets, esti- 
 mated to be worth more than fifty thousand dollars; and 
 whereas, the said first party is unable to convert his said 
 assets into money fast enough to discharge his said 
 indebtedness as it matures, and is desirous that the same 
 shall not be sacrificed, but so managed and disposed of 
 that they will realize their fair value at as little cost as 
 possible, and satisfy his creditors, in full, and leave a resi- 
 due for him, etc." The court said, in the course of the 
 opinion, that it was the intention of the parties which con- 
 trolled, and that this intention could not be better deter- 
 mined than from the language employed in the convey- 
 ance. The deed declared that it was made "to prevent a 
 sacrifice" of the property and " to leave a residue " to the 
 debtor. It also avowed in the instrument that the assets 
 were largely in excess of the liabilities, and it would seem 
 
 1 Jaffray v. McGhee, 107 U. S. 365, v. I J <>st, 1 Allen (.Mass. 134 ; Parton v. 
 
 .Rep.367 Citing Peck v. Burr, Hervey, 1 Gray (Mass.) 119 ; Batba- 
 
 10 N" Y. -t'.n -, Macgregor v. Dover A: way v. Moran, 14 Me. <>7. 
 Deal I;, k. Co., 18 Q. B. 618; Jackson 2 80 Ky. 334, 335. 
 v. Davison, I Barn & Aid. cur, ; Miller 

 
 § 326 RESERVATIONS. 573 
 
 to follow from the language that the primary object of 
 the deed was not to secure creditors, but, on the contrary, 
 to obstruct them in the enforcement of their legal reme- 
 dies in order that the debtor might be benefited. The 
 deed was declared to be fraudulent upon its face and was 
 set aside. 1 
 
 §326. Reservations — Exempt property. — A favorite 
 ground of attacking voluntary assignments made by debt- 
 ors for the benefit of creditors is, that a reservation has 
 been made in the debtor's interest, 2 or that there has not 
 been a complete surrender of the debtor's dominion and 
 control over the assigned property. 3 The question comes 
 up in various phases. Davis, P. J., observes : "It is well 
 settled that the reservation of the least pecuniary charac- 
 ter by the assignor or his family, and any device to cover 
 up the property for the benefit of the assignor, or secure 
 to him directly or indirectly any benefit, is fraudulent, and 
 has always received the condemnation of the courts. 
 The debtor who makes an assignment of this character 
 must devote all his property to the payment of his debts, 
 except such as is by law exempt from execution. The 
 withholding of any considerable sum of money at the 
 time of making an assignment, from the assignee, must, 
 we think, in some form be explained, otherwise it is suffi- 
 cient to establish a fraudulent intent." 4 An assignment 
 in Michigan is void which does not include the assignor's 
 
 1 See, also, Vernon v. Morton, 8 Y. 520. it was lield that an express 
 
 Dana (Ky.) 247, 264 : Van Nest v. Yoe, exception from the grant of a portion 
 
 1 Sandf. Ch. (N. Y.) 4; Ward v. of the property of the assignor, there 
 
 Trotter, 3 Mon. (Ky.) 1; Bigeknv v. being no reservation of benefil in the 
 
 Stringer. 40 Mo. 195. property actually assigned, did ool 
 
 'Means v. Dowd, 128 U. S. 273, 9 render the instrument void. SeeMat- 
 
 S. C. Rep. 65; McReynolds v. Ded- ter of Gordon, 49 Hun (N. Y.) 372, 3 
 
 man. 47 Ark. 351,1 S. W. Rep. 552 ; N. Y. Supp. 589: Dow v. Platner, 
 
 Grove? v. Wakeman, 11 Wend. (N. Y.) L6 N. Y. 562. 
 
 187, 1 Am. L. Cas. 63; Goodrich v. 'White v. Fagan, 25 N. V. Daily 
 
 Downs. 6 Hill (N. Y.) 438. [leg. p. 269 (Feb. 8. 1884). See is 
 
 3 In Carpenter v. Underwood, 19 N. Weekly Dig. (N. Y.) 358.
 
 374 RESERVATIONS. §326 
 
 real estate. 1 A reservation of $800 worth of property * 
 renders an assignment void on its face. The fact that 
 the money so reserved is to be used for the purpose of a 
 compromise is no excuse. 3 Nor. generally, that it was 
 paid over to the assignee after the action to set aside the 
 assignment was brought. 4 If, however, the amount 
 retained was small and was handed over to the assignee 
 before the suit was brought, the assignment will not neces- 
 sarily be set aside. 5 An assignment is invalid if the 
 debtor prefers his landlord's claim for rent of a dwelling- 
 house with intent to secure occupation for himself and 
 family subsequent to the assignment without further pay- 
 ment 1 ' An assignment for the benefit of creditors who 
 will accept sixty per cent., reserving the surplus to the 
 debtor, is manifestly invalid. 7 
 
 We have already shown that according to the weight 
 of the best authority, a conveyance of a debtor's exempt 
 property or homestead 8 cannot be annulled as fraudu- 
 lent. The same principle appertains in the law regulat- 
 ing fraudulent voluntary assignments reserving property 
 exempt by statute. The assignment is not rendered void 
 for the reason that creditors are " not hindered or delayed 
 by the reservation of that which they have no right to 
 touch." !l This is an exception to the rule clearly deduci- 
 
 Price v. Baynes, :!T Mich. 4S7. per • In re Beadle, 5 Sawyer351. 
 
 Cooley, C. J., 1 Am. tnsolv. Rep. L38. K See Reeves v. Peterman, in 1 ,) Ala. 
 
 (lark v. Robbins, 8 Kan. 574. 368, 19 So, Rep. 512. 
 
 Eleine v. Nie, 88 Ky. 542, 11 S. W. 9 Hildebrand v. Bowman, 100 Pas 
 
 Rep. r,90. St. 582. See Mulford v. Shirk, 26 Pa. 
 
 Coureey v. Morton. 132 N. Y. 556, St. 474; Ehrisman v. Roberts, 68 
 
 :;<» X E. Rep. 231. Pa. St. :!11 ; Richardson v. Marqueze, 
 
 Fas v. Grant, 53 Hun, 44, 5 N. Y. 59 Miss. 80, 42 Am. Rep. 353. See 
 
 Sup],. 910, affi'd 126 X Y. 624, 2*3 N. Derby v. Weyrich 8 Neb. 176,30 Am. 
 
 E Rep HO. See, also, Rothschild \. Rep. 827; 1><>w v. Platner, Hi X. Y. 
 
 Solomon, 52 linn (N Y.) 186, :, X. 562 ; Heckman v. Messinger, 49 Pa. St. 
 
 Y. Sup. si;:,. |65. Red River Valley Bank v. Free 
 
 Elias v. Farley, 3 Vbb. Ct. A.pp. man. 1 N. Dak. 196, 46 X. W. Rep 
 
 Dec, X. Y. 11. 36; Richardson v. Stringfellow, 100
 
 § 327 kl.M.m i\i, SURIM 1 S. 575 
 
 ble from the cases, " that no debtor can, in an assignment, 
 make a reservation at the expense of his creditors of any 
 part of his income or property for his own benefit, nor 
 can he stipulate for any advantage either to himself or 
 
 family." J If exempt property is not reserved it seems 
 it cannot be claimed. 2 Another reservation must be 
 considered. 
 
 £ 327. Reserving surplus. In cases where a debtor has 
 assigned all of his property in trust to pay certain speci- 
 fied creditors, and then, without making provision for 
 other creditors, to reconvey the residue of the property 
 to the debtor, the instrument was declared fraudulent 
 upon its face. The court held that it could not be made 
 effectual by showing that there was, as matter of fact, no 
 possible surplus resulting to the debtor after the pre- 
 ferred creditors were paid. Bronson, J., observed : " The 
 parties contemplated a surplus, and provided for it; and 
 they are not now at liberty to say that this was a mere 
 form which meant nothing. And although it should ulti- 
 mately turn out that there is no surplus, still the illegal 
 purpose which destroys the deed is plainly written on the 
 face of the instrument, and there is no way of getting rid 
 of it." 8 In Knapp v. McGowan, 4 Earl, J., said: "An 
 insolvent, and even a solvent debtor cannot convey all his 
 property to trustees to pay a portion of his creditors, 
 with a provision that the surplus shall be returned to him, 
 leaving his other creditors unprovided for; because such 
 
 Ala. 416. 14 So. Rep. 283; Bobbitt v. Leavitt, 6 N. Y. 521. The defect can- 
 
 Rodwell, 105 N. C. 236, 11 S. E. Rep. not l>e remedied by ;i supplementary 
 
 245. See £;; 46-50. assignn* tit, so as to cul off lien 
 
 1 McClurg v. Lecky, 3 P. &. W. quired in the meantime. Sutherland 
 (Pa.) 91. v. Bradner, 1 16 N. Y. U0, 22 N. E. 
 
 2 Carroll v. Else. 75 Md. 301, 23 Atl. Rep. 554. The New York rule is dis- 
 Rep. 740. approved in Muchmore v. Budd, 58 
 
 (iritlin v. Barney, 2 X. Y. 371. N.J. Law 369, 22 Atl. Rep. 518. 
 See Smith v. Howard, 20 How. Pr. ' 96 N. Y. 85. 
 
 (N. Y.) 12S. Compare Nicholson v.
 
 S>i 
 
 j6 RESERVING SURPLUS. $ 5-7 
 
 a conveyance ties up his property in the hands of his 
 trustees, places it beyond the reach of his creditors by 
 the ordinary process of the law, and thus hinders and 
 delays them, and is, therefore, void as to the creditors unpro- 
 vided for." x The Supreme Court of Nebraska, 2 how- 
 ever, refused to follow this doctrine, and considered that 
 such a reservation was partial and only incidental. It 
 merely stipulated for that which, had it been omitted, 
 the law would have implied, and required to be done. 3 
 So in Hubler v. Waterman, 4 the court observed : " The 
 reversionary clause is mere surplusage, for it would have 
 been implied if it had not been expressed." 5 The princi- 
 ple set forth in these latter cases certainly embodies the 
 more logical rule. There is, however, an obvious dis- 
 tinction in these cases. In Griffin v. Barney the surplus 
 was to revert before all the creditors were paid, which 
 was palpably fraudulent, while in the other cases the sur- 
 plus contemplated was that remaining after all the cred- 
 itors had been satisfied. Of course the law will not 
 permit a debtor in failing circumstances to convey all his 
 property to trustees, with a view to exempt it from execu- 
 tion for an indefinite time, to authorize them to hold it 
 against creditors until the profits pay all charges, 
 expenses and debts, and then to reconvey it or permit it 
 to revert to the original owner. Property cannot be thus 
 withdrawn from the operation of the law in its due course 
 against the consent of existing creditors. 6 A provision 
 in an assignment to a creditor to the effect that am - sur- 
 plus should be paid to another creditor has been held to 
 be valid.' 
 
 Sutherland v. Bradner, 116 N. * 33 Pa, St. 414. 
 
 Y. 410. 22 N K. Rep. 554 Sees, p., Johnson v. McAllister, 30 
 
 Morgan v. Bogue, 7 Neb. 133. Mo. 327; Richards v. Levin, 16 Mo. 598. 
 
 •See Curtis v. Leavitt, l"> N. V. '.) ; 'Arthur v. Commercial & R. R. 
 
 Coulter v. Lumpkin, 88 Ga. 277, US. Bank, 17 Miss. 133. 
 
 E. Rep. 614; Bluthenthal v. Magn< Perkins v. Hutchinson, 17 R. 1. 
 
 '.»; Ala. 530, L3So. Rep. 7. 150, 22 Ail. Rep. 1111.
 
 § 3 28 Kl ' ■' N 31 577 
 
 § 328. Releases exacted in assignments - Voluntary 
 assignments exacting releases from creditors are looked 
 upon with great disfavor by the courts. 1 The law seems 
 to be settled that assignments will be declared fraudu- 
 lent and void if creditors are preferred on condition of 
 their subsequently executing releases of their respective 
 demands. The reason is obvious. 2 It is a clear attempt 
 on the part of the debtor to coerce his creditors to 
 accede to his terms, 3 and a withholding of his property 
 from them unless they do so accede. As was observed 
 in Hyslop v. Clarke : 4 "It does not actually give a prefer- 
 ence, but is, in effect, an attempt on the part of the 
 debtors to place their property out of the reach of their 
 creditors, and to retain the power to give such prefer- 
 ence at some future period If they can keep it 
 
 locked up in this way in the hands of the trustees, and set 
 their creditors at defiance for three months, they may do 
 so for three years, or for any indefinite period." 5 The 
 right of giving preferences cannot be so exercised as to 
 secure to the debtor the future control of the assigned 
 property or its proceeds, as continuing the business in 
 another's name. 6 
 
 'Hubbard v. McNaughton, 43 Rep. 36; May v. Walker. :>,:> Minn. 
 
 Mich. 224. See Lawrence v. Norton, 194; Greeley v. Dixon, 21 Fla. 426 : 
 
 4 Woods 406; Leitcb v. Hollister, 4 cf. Stewart v. Spenser, 1 Curt 157, 88 
 
 N. Y. 211 ; Baldwin v. Peet, 22 Tex. Fed. Cas. 72. Clayton v. Johnson, 36 
 
 708; Barney v. Griffin, 2 N. Y. 365 ; Ark. 406; Wolf v. Gray, 58 \rk. 75, 
 
 Bennett v. Ellison, 23 Minn. 242, 1 13 S. W. Rep. 512. in that State 
 
 Am. Insolv. Rep. 36 ; Curtain v. preference of assenting creditors is 
 
 Talley, 46 Fed. Rep. 580; Oliver-Finnie allowed provided thai all the surplus 
 
 Grocer Co. v. Miller, 53 Mo. App. 107; is devoteil to payment of aon-assent- 
 
 Turner v. Douglass, 77 Tex. 619, 14 ing creditors. 
 
 S. W. Rep. 221 ; McWilliams v. Cor- » Qliver-Finnie Grocer Co. v. Miller, 
 
 nelius, 66 Tex. 301, 17 S. W. Rep. 767 : 53 Mo. App. 107. 
 
 Focke v. Blum, 82 Tex. 436, 17 S. W. * 14 Johns. (N Y.) 458, 
 
 Rep. 770. l See Grover v. Wakeman, 11 Wend 
 
 5 Spaulding v. Strang, 38 N. Y. 12 ; (N. Y.> 1ST. 
 
 Brown v. Knox, 6 Mo. 303 : Bennett v. > Haydocfc v. Coope, 53 N Y. 68 
 Ellison, 23 Minn. 242, 1 Am. Insolv. 
 
 37
 
 ;;S PREFERRING CLAIMS. ^5^9 
 
 It has been considered competent for a debtor in fail 
 in«'' circumstances to make an assignment for the benefit 
 of creditors, providing that accommodation creditors shall 
 be paid first ; secondly, those creditors who had executed 
 a conditional release should receive fifty per cent. ; and 
 thirdly, the residue of the creditors should be paid. 1 The 
 whole estate was by this instrument devoted to the pay- 
 ment of the debts. It was considered that in no sense 
 could it be said that an agreement by a debtor with a 
 creditor to prefer him for one-half of his demand in an 
 assignment, on condition or in consideration that the bal- 
 ance should be released, was a fraud upon those who 
 refused to become parties to the contract. These cases 
 certainly go to the verge in upholding an assignment of 
 this character ;~ and where it is apparent from the face of 
 the deed, or is a moral certainty, that nothing will be left 
 to the non-assenting- creditors, the court will annul the 
 assignment. 3 
 
 § 329. Preferring claims in which assignor is partner — 
 Rights of survivor. —It was contended by counsel in Welsh 
 v. Britton, 4 that if an insolvent person made an assign- 
 ment for creditors, and preferred a debt due another firm, 
 one member of which was also a member of the assign- 
 ing firm, this constituted such a reservation to one of the 
 assignors as would avoid the assignment. The case of 
 Kayser v. Heavenrich "' was cited, but the court said that 
 it could not be said to establish so broad a principle. In 
 that case a preference was given to one Lowentholl, and 
 one of the assigning firm was an equal partner with 
 Lowentholl in the preferred claim. This was held to be 
 
 Spaulding v. Strang, 37 N. V. 135, s Seale v. Vaiden, 1 Woods661. 
 
 38 N. Y. 9; explai I, Baydock v. ;I Scale v. V r aiden, 4 Woods 661. Sol 
 
 Coope, 53 N. Y. 74. Compare Nat. Lawrence v. Norton, I Woods 106. 
 Park Kink v.Wuitmore, nil X. Y. 304, ' 55 Tex. 122. 
 LO N. E. Rep. 524 Smith v. Munroe, ' 5 Kan. 324. 
 
 1 \|.|,. Div.(N.Y.)77, :;7 N.Y. Supp. 62.
 
 § 3 2 9 PREFERRING CLAIMS. 
 
 a secret trust for the benefit of that member oi the firm 
 and to invalidate the assignment. The fad "I se< rei cy 
 was also given prominence. ( )n the other hand, the i 
 of Fanshawe v. Lane 1 asserts the absolute right of an 
 assigning firm to prefer such debts. The Supreme Court 
 of Texas followed this latter case. In Bonwil \. Hey- 
 man, a it was held that a preference by mem hers of a 
 partnership of another firm of which they are the sole 
 partners, will not be upheld unless it be clearly shown 
 that the transaction is free from fraud. We may here 
 state that the insolvent cannot delegate to the assignee 
 the power to give preferences at his discretion. ; 
 
 As we have seen, a special partner cannot be preferred 
 for the amount of his investment, 4 and where a limited 
 partnership becomes insolvent its assets are a special 
 fund for the payment of its debts except those due to the 
 special partner. 5 A surviving partner may make a 
 general assignment of the firm assets. Mr. Justice 
 Harlan said : " But while the surviving partner is under 
 a legal obligation to account to the personal representa- 
 tive of a deceased partner, the latter has no such lien 
 upon joint assets as would prevent the former from dis- 
 posing of them for the purpose of closing up the partner- 
 ship 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 have the joint property 
 applied in good faith for the liquidation of the joint lia- 
 bilities. As with the concurrence of all of the partners the 
 joint property could have been sold or assigned, for the 
 
 1 16 Abb. Pr. (N. Y.) 82. • Emerson v. Senter, 118 CJ. 8. 3, 6 
 
 2 43 Neb. 537. 61 N. W Rep. 716. S. C. Rep. 981 ; William- \. Whedon, 
 'Boardman v. Balliday, 10 Paige L09 V Y. 341, 16 X. E. Rep. 865 
 
 iN. Y.) 223. Haynes v. Brooks, 12 Hun N Y.i 
 
 •Whitcomb v. Fowle, 10 Daly (N. 528; Beste v. Burger, 17 AM. N.C 
 
 5 23, 1 Am. [nsolv. Rep. 160 (N. Y. L6i and note on the rights of 
 
 limes v. Lansing, 7 Paige (N. Y.) surviving partners, and represents 
 
 583. tives "i a deceased partner.
 
 580 TRUSTEE. § 330 
 
 benefit of preferred creditors of the firm, the surviving 
 partner — there being no statute forbidding it — could make 
 the same disposition of it. The right to do so grows out 
 of his duty, from his relations to the property, to admin- 
 ister the affairs of the firm so as to close up its business 
 without unreasonable delay ; and his authority to make 
 such a preference — the local law not forbidding it — can- 
 not, upon principle, be less than that which an individual 
 debtor has in the case of his own creditors. It neces- 
 sarily results that the giving of preference to certain part- 
 nership creditors was not an unauthorized exertion of 
 power by Moores, the surviving partner." 1 A preference 
 given by a board of directors to a firm of which two of 
 them are members was held void. 2 
 
 § 330. Authorizing trustee to continue business. — An 
 assignment drawn precisely as it ought to be will not 
 undertake to speak to the assignee in detail in regard to 
 his duties under the trust. These duties, unless the cred- 
 itors themselves direct otherwise, are simply to convert 
 the estate into money and pay the debts in the order and 
 with the preferences indicated in the instrument. 3 There 
 are numerous cases reported in which assignments in 
 trust for the benefit of creditors have been sustained, 
 although they contained provisions for the continuance 
 of the business of the assignor, either by himself or by 
 his trustee. 4 It will be found upon examination that, in 
 
 1 Emerson v. Senter, 118 U. S. 3, 8, assigned, and may also direct upon 
 
 <i S. ( '. Hep 981. what debts and in what order the 
 
 * Hulings \ Hillings Lumber Co., proceeds shall be applied: but beyond 
 
 38 W. Va. ;',.",i, 188. E. Hep. 620. this can prescribe no conditions what- 
 
 1 Ogden v. Peters, 31 N. Y. 24. ever as to the management or dispo* 
 
 '• The true principle applicable to all sition of the assigned property." 
 
 Buch cases is. that a debtor who Selden, J., in Dunham v. Waterman, 
 
 makes a voluntary assignment for 17 N. Y. 20; Jones v. Syer, 52 Md. 
 
 the benefit of his creditors may di- 211. 
 
 rect, in general terms, a Bale of the ' !>.• Forest v. Bacon, 2 Conn. 6881 
 
 property ami collection <>f the dues Kendall \. The New England Carpet
 
 §33' ILLUSTRATIONS AND AUTHORITIES. 581 
 
 many of these cases, the business authorized to be carried 
 on by the assignment was merely ancillary to winding up 
 the debtor's affairs, and that the authority was given with 
 the view of more effectually promoting the interests of 
 the creditors. 1 In cases where the authority is given 
 chiefly for the benefit of the debtor, 2 or where it is 
 intended or calculated to hinder and delay creditors for 
 an unreasonable period in the collection of their debts, it 
 renders the deed fraudulent and void 3 
 
 § 331. Illustrations and authorities. — Authorities relating 
 to this class of voluntary assignments are numerous. In 
 Owen v. Body, 4 the assignment was made to trustees for 
 the benefit of creditors, giving preferences, and contained 
 provisions investing the trustees with power to carry on 
 the trade of the debtor, and in furtherance of that pur- 
 pose to lay out money in payment of rent and keeping 
 up the stock in trade. The deed was adjudged void as 
 being an instrument to which creditors could not reason- 
 ably be expected to assent. Lord Wensleydale, in giving 
 his opinion in the House of Lords in the case of Wheat, 
 croft v. Hickman, 5 referring to this deed said that the 
 provisions contained in it allowing the effects of the 
 debtor, which ought to have been divided equally amongst 
 his creditors, to be put in peril by being employed in 
 trade, prevented it from being a fair deed and good 
 against creditors. In American Exchange Bank v. 
 Inloes, 6 the deed contained a provision empowering the 
 
 Co., 13 Conn. 383 ; Foster v. Saco • Acme Lumber Co. v. Hoyt, 71 
 
 Manuf. Co., 12 Pick. (Mass.) 451; Miss. 106, 14 So. Rep. 64. 
 
 Woodward v. Marshall, 22 Pick. 3 Webb v. Armistead, 26 Fed. Rep. 
 
 (Mass.) 468; Hitchcock v. Cadmus, 70; Jones v. Syer, 52 Md. 211. 
 
 2 Barb. (N. Y.) 381 ; Ravisies v. Al- 4 5 Adol. & El. 28, 31 Eng. C. L 
 
 Ston, 5 Ala. 297; Janes v. Whitbread, 254 ; Acme Lumber Co. v. Hoyt, 71 
 
 11 C. B. 406 ; Stoneburner v. Jeffreys, Miss. 106, 14 So. Rep. 64 ; Jones v. 
 
 116 N. C. 78, 21 S. E. Rep. 29. Syer, 52 Md. 211 ; Renton v. Kelly, 49 
 
 ! See De Wolf v. Sprague Mfg. Co., Barb. (N. Y.) 536. 
 
 49 Conn. 326. » 9 C. B. [N. S.] 101. 
 
 » 7 Md. 380.
 
 582 ILLUSTRATIONS AND AUTHORITIES. §331 
 
 trustee at his discretion to sell the property conveyed 
 gradually, in the manner and on the terms in which, in 
 the course of their business, the assignors had sold and 
 disposed of their merchandise. For that reason the deed 
 was adjudged void. Mason, J., said: "Without advert- 
 ing to other objectionable, if not fatal, provisions in this 
 deed, the one to which we have just referred is sufficient, 
 in the judgment of this court, to render the deed null 
 and void as against creditors. It simply seeks through 
 the instrumentality of a trustee, to provide for carrying 
 on the business of the concern in the same manner 
 in which it had been before conducted, and for an 
 indefinite period, free of all control or interference 
 on the part of creditors. Surely if such a provision in a 
 deed is not calculated to hinder and delay creditors, we are 
 at a loss to know what could have such an effect, short of 
 a conveyance in trust for the benefit of the grantor himself. 
 A debtor cannot thus postpone his creditors to an indefi- 
 nite period without their assent. 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 uncertain and 
 indefinite period, must be regarded in conscience and law 
 as a fraud." In a later case in the same State 1 an 
 assignment in trust for the benefit of creditors, author- 
 izing the trustee to carry on and conduct the business 
 " for such time as in his judgment it shall be beneficial to 
 so do," or to sell all the goods and stock in trade " at such 
 times, in such manner, and for such prices as he may 
 deem proper," was adjudged void as against creditors. 
 The court said: "It is obvious, the certain effect of this 
 clause would be to hinder and delay creditors ; and as 
 against them such provision renders the deed utterly 
 void. It is an attempt on the part of the debtor to place 
 
 Jones v. Syer, 52 M<1. 311.
 
 §33? 
 
 DI I W . 
 
 583 
 
 his property, for an uncertain and indefinite period, beyond 
 the reach of his creditors, and to make their rio;hts in a 
 great measure dependent upon the uncontrolled discretion 
 of a trustee of the debtor's own selection. The law will 
 tolerate no such attempt, but treats the act as a fraud 
 upon creditors, and the instrument of conveyance as 
 simply void as against them." ' Where the deed required 
 the trustee to carry on a school for eighteen months, and 
 if unprofitable to pay the loss from the assigned estate 
 the instrument was avoided. 2 
 
 § 332. Delay — Sales upon credit. — An insolvent debtor, 
 it is held in New York, cannot deprive his creditors of 
 
 1 See, also, Dunham v. Waterman, 
 17 N. Y. 9. Authority given in the 
 assignment to the assignee to finish up 
 unfinished work will not necessarily 
 avoid the instrument. Robbins v. 
 Butcher, 104 N. Y. 575, 11 N. E. Rep. 
 272. In this case the assignment con- 
 tained the following clause : " And it 
 is further provided that should it be 
 necessary and to the better perform- 
 ance of the trust that the party of the 
 second part shall have full power and 
 authority to finish such work as is 
 unfinished, to complete such build- 
 ings as are incompleted, and to pay all 
 necessary charges and expenses for 
 such completion prior to the payment 
 of all debts and liabilities hereinbefore 
 mentioned and provided." Finch, J., 
 said : " The repetition of the word 
 •that* permits it to be said that this 
 provision is an unfinished sentence 
 and confers no authority at all; but 
 M" such criticism is made, and the 
 meaning of the language is more ac- 
 curately expressed by disregarding 
 the word 'that" where it occurs the 
 second time. Both parties have ar- 
 gued the case upon such construction. 
 The appellant claims that the provi- 
 sion confers upon the assignee an au- 
 thority derived from the assignor to 
 
 unduly delay the execution of the 
 trust and divert the trust funds, in 
 the exercise of his discretion, and 
 free from the supervision and control 
 of the courts, and so is fraudulent 
 and void upon its face. The respond- 
 ent contends that the authority given 
 is upon a condition which rests in the 
 discretion and judgment of the 
 courts, and if exercised by the as- 
 signee without their prior permission 
 and approval, must be so exercised at 
 his peril and subject to their prohibi- 
 tion or direction at any moment, and 
 upon the application of any person 
 interested or aggrieved, and so does 
 not involve an intent to hinder, delay, 
 or defraud the creditors of the as- 
 signor. We think the latter view of 
 the instrument discloses its true and 
 intended meaning." Aprovision com- 
 pelling the trustee to sell at the usual 
 retail prices will vitiate the assign- 
 ment. Gregg v. Cleveland, 82 Tex. 
 187, 17 8. W. Rep. 777; see also 
 Kansas City Packing Co. v. Hoover, 
 1 D. C. Ct. of App. 274; Chafee v. 
 Blatchford, 6 Mackey (D. C.) 459. 
 
 • Catt v. Win. Knabe & Co. Manuf. 
 Co., 93 Va. 741, 26 So. Rep. 246. See 
 Sheppards v. Turpin, 3 Gratt. (Va. ) 
 373.
 
 584 DELAY. § 332 
 
 their right to have his property converted into money 
 without delay. He can make an assignment with prefer- 
 ences, but he cannot authorize his assignee to sell on 
 credit. 1 Xo delay is permitted other than such as is 
 reasonably necessary to secure the application of the 
 property to the payment of his debts.' In Dunham v. 
 Waterman, 3 Selden, J., following the reasoning of Nel- 
 son, J., in Cunningham v. Freeborn, 4 said: "That 
 wherever an assignment contains provisions which are 
 calculated per se to hinder, delay, or defraud creditors, 
 although the fraud must be passed upon as a question of 
 fact, it nevertheless becomes the duty of the court to set 
 aside the finding, if in opposition to the plain inference 
 to be drawn from the face of the instrument. A party 
 must in all cases be held to have intended that which is 
 the necessary consequence of his acts." 5 It follows that 
 when this objectionable feature is embodied in the face 
 of the assignment, the court itself will stamp it as fraudu- 
 lent. A provision that realty embraced in the assign- 
 ment shall be held for two years, and then sold partially 
 upon credit renders the assignment void. 6 In Beus 
 v. Shaughnessy r the insolvent directed that the " times, 
 places, and terms of selling the property shall be agreed 
 on by the trustee and the majority in interest of the first 
 and second-class creditors," and that if they did not agree, 
 then two-thirds of all of the creditors should direct such 
 " times, places, and terms." The court said there seemed 
 
 1 Nicholson v. Leavitt, 6 N. Y. 510 ; Donaldson, 20 Kans. 165, 1 Am. 
 
 Kansas City Packing Co. v. Hoover, [nsolv. Rep. 15:5. 
 
 1 D. C. CI \pi>. 268; Rosenstein v. * 17 N. T. 21. 
 
 Coleman, 18 Mont. ir.:5. 15 Pac. Rep. 4 11 Wend. (N. Y.) 251-254. 
 
 L081 ; Barney v. Griffin. 2 N. Y. 365. : ' See Coleman v. Burr, 93 N. Y. 
 
 Compare Bracketl \ Barvey, 91 N. 31; also §§ 9, 10. 
 
 Y 220 6 Bank v. Martin, 96 Tenn. 3, 33 S. 
 
 Bennett v. Ellison, 2:; Minn. 242, W. Rep. 565. 
 
 1 Am. Insolv. Rep. 36. See Keevil v. T 2 Utah 499. See McCleery v. 
 
 Allen, 7 Neb. 21.
 
 § 33 2 SALES UPON CREDI1 . 585 
 
 to be but one question to consider, and that turned entirely 
 upon the construction to be placed upon the words " terms 
 of selling," whether these words in the deed of trust 
 embraced the power to sell upon credit. Continuing, it 
 was said that the courts generally held that deeds of 
 assignment, giving authority to the assignee to sell upon 
 credit, were fraudulent and void as to creditors not 
 assenting thereto, and especially was this the case where 
 the deeds made preferences between creditors. In New 
 York this general rule is fully recognized. The case of 
 Kellogcr v. Slauson, 1 at first reading, would seem to be a 
 departure from the rule, but upon a more careful con- 
 sideration it will be found to be consistent with it. The 
 assignees in that case were authorized to sell the property 
 u on such terms as in their judgment might be best for 
 the parties concerned, and convert the same into money." 
 The court, in upholding the assignment, said that this dis- 
 cretion must be exercised within legal limits. In Brigham 
 v. Tillinghast 2 the case of Kellogg v. Slauson is referred 
 to, and the court says that the words "convert the same 
 into money," limited the disposition of the property to 
 sales for cash, and that such was the purport of the ruling 
 in that case. The same rule is reiterated in Rapalee v. 
 Stewart. 3 The assignment held to be valid in the case 
 of Sumner v. Hicks 4 contained language similar to that 
 
 1 11 N. Y. 302. diate application, will avoid the 
 
 - 13 N. Y. 215. instrument, because it shows that it 
 
 1 37 N. Y. 311. "The true rule to was made with ' intent to hinder and 
 
 l»o observed is this : An insolvent delay creditors in the collection of 
 
 debtor may make an assignment of their debts.' Such an intent expressed 
 
 all his estate to trustees to pay his in the instrument or proved aliunde, 
 
 debts with or without preferences; is fatal alike by the language of our 
 
 hut such assignees are bound to make statute and the well-settled adjudica- 
 
 an immediate application of the prop- tione of the English and American 
 
 erty. And any provision contained courts." Brigham v. Tillinghast, 13 
 
 in the assignment which shows that N. Y. 215 220. 
 
 the debtor, at tin- time of its execu- 4 2 Black 532. 
 tiou, intended to prevent such imme*
 
 586 SALES UPON CREDIT. § 333 
 
 found in Kellogg v. Slauson, and, indeed, the closing 
 words of the objectionable provision were precisely the 
 same, viz.: "And convert the same into money." x The 
 inference from these cases is that if these last words had 
 been omitted the assignments would have been held void 
 as authorizing sales upon credit. 
 
 The word "term" signifies, among other things, "a 
 limit," "a boundary." If we say the power of sale is 
 oranted without "limit," without "boundary," it can be 
 exercised to an unlimited extent and without bounds. In 
 the case of Beus v. Shaughnessy 2 there was no restric- 
 tion whatever upon the power of sale granted to the trus- 
 tees and a fixed proportion of the creditors. They were 
 authorized to sell upon such " terms " as they might deem 
 proper, and this power had no limits, no bounds. This 
 broad grant certainly would necessarily embrace the 
 power to sell upon credit. 
 
 §333- — 1° Wisconsin, in the case of Hutchinson v. 
 Lord, 3 where the assignment empowered the assignee to 
 sell in such manner and " upon such terms and for 
 such prices as to him shall seem advisable," it was held 
 that this language gave power to sell upon credit, which 
 would necessarily operate to hinder and delay creditors, 
 and rendered the assignment fraudulent and void. In the 
 case of Keep v. Sanderson, 4 although the objectionable 
 words were exactly those found in Kellogg v. Slauson, 
 yet the court held that they conferred an authority to 
 sell upon credit, and thus avoided the whole assignment. 
 In Woodburn v. Mosher 5 the authority to the assignees 
 was to convert the property into money "within conve- 
 nient time as to them shall seem meet." It was held that 
 the assignment was void upon its face. In Keep v. 
 
 'See Keep v. Sanderson, 12 Wis. • 1 Wis. 286. 
 
 362. « 2 Wis. 42. 
 
 -' It ah 499. 6 9 Barb. (N. Y.) 255.
 
 §§ 333 a > 334 EXEMPTING ASSIGNEE. 5S7 
 
 Sanderson l it was decided that a clause in an assignment 
 authorizing the assignee to sell and dispose of the 
 assigned property "upon such terms and conditions as in 
 his judgment may appear best and most to the intei 
 of the parties concerned," was authority to sell on credit, 
 and that it was void as to creditors, in accordance with the 
 decision on the former appeal. 2 
 
 >J 333a. Exceptional rule. — In other States a different 
 rule is adopted, and it is held that a general power to 
 give credit is perfectly consistent with good faith, and not 
 only does not render the assignment fraudulent in law. 
 but is not even a badore of fraud. :i 
 
 § 334. Exempting assignee from liability.— Another sub- 
 terfuge of insolvent debtors must be noticed. In De 
 Wolf v. Sprague Mfg. Co. 4 the deed contained a clans.- 
 which provided that " in case the same (meaning the mill, 
 etc.) are thus run by him or otherwise, he shall not be 
 liable personally for the expenses or losses arising there- 
 from, but the same shall be chargeable to the trust fund 
 vested in him." This was held in connection with the 
 right to run the mills and print works, to furnish additional 
 evidence of the fraudulent purpose for which the assign- 
 ment was executed. A failing debtor cannot be permitted 
 to put at hazard the trust fund which justly belongs to 
 his creditors by authorizing the trustee to manage it with- 
 out due prudence and caution. This question was before 
 the New York Court of Appeals in Litchfield v. White. 5 
 In that case the assignment contained a clause by which 
 it was mutually agreed between the parties to it that the 
 
 1 12 Wis. 361. S. E. Rep. 682 ; Johnson v. McAllis- 
 
 2 A trustee in bankruptcy may sell ter, 30 Mo. 327: Scott v. Alfonl. 53 
 the property of the estate on credit Tex. 82. 
 
 where he deems such action most for 4 49 Conn. 328. 
 
 the benefit of creditors. Traer v. 5 7 N. Y. 442 ; Kansas ( it y Packing 
 
 Clews, 115 U. S. 528, 6 S. C. Rep. 155. Co. v. Hoover, 1 D. C. App. 
 
 3 Kreth v. Rogers, 101 N. C. 263, 7 268.
 
 588 PROVIDING F<>R COUNSEL FEES. §335 
 
 assignee should not be held liable or accountable for any 
 loss that might result to the trust property or the pro- 
 ceeds of it, unless the same should happen by reason of 
 the gross negligence or willful misfeasance of the assignee. 
 The assignment was adjudged void. Chief-Justice Rug- 
 gles said : "A failing debtor by an assignment puts his 
 property where it cannot be reached by ordinary legal 
 process. He puts it into the hands of a trustee of his own 
 selection, often his particular friend, sometimes a man to 
 whom the creditors would not have been willing to con- 
 fide such a trust. The debtor has an interest in the 
 application of the trust funds to the payment of his debts ; 
 but the creditors have usually a far greater interest 
 therein ; and that interest depends in many cases on the 
 competency and diligence of the assignee. The debtor 
 cannot be permitted, by creating a trust for his creditors, 
 to place his property where it cannot be reached by 
 ordinary legal remedy, and at the same time exempt the 
 trustee from his proper responsibility to his creditors." 1 
 
 § 335- Providing for counsel fees. — The question of the 
 right of the assignor to provide for or interfere in the mat- 
 ter of the assignee's counsel fees has been before the 
 courts in various forms. In Heacock v. Durand 2 
 the assignee was a lawyer, and by the provisions of the 
 assignment was to be entitled to " a reasonable and lawful 
 compensation or commission for his own services, both as 
 assignee as aforesaid, and as the lawyer, attorney, solicitor, 
 and counsel in the premises." The assignment was 
 annulled on the theory that the power given to charge 
 counsel fees tended so directly to the impairment of the 
 fund and the injury of creditors, that it was impossible to 
 offer a valid reason in its support. The provision places 
 
 1 Compare Casey v. Janes, 37 N. Y. Dean, 86 N. Y. 398, as to duties of 
 611 ; Matter of Cornell, 110 N. Y. assignee. 
 B57, 18 N. E. Rep. 142; Matter of M2 111. 231.
 
 § 33 6 AUTHORITY TO COMPROM] 
 
 the assignee in two inconsistent positions. Tin's question 
 was before the New York Court of Appeals in Nichols \. 
 McEwen, 1 and the court held that such a clause was 
 fraudulent in its character, and would vitiate the assign- 
 ment. Roosevelt, J , observed that to sanction such a 
 clause " would be establishing a practice pregnant in many 
 cases with the most mischievous consequences." I lenio. 
 J., says, that an insolvent debtor has no right "to create 
 such an expensive agency for the conversion of his 
 property into money, and distributing it among his cred- 
 itors. Besides being wrong in principle, it is calculated to 
 lead to obvious abuses." 2 It is no objection, however, 
 to the instrument, that provision is made for the payment 
 of a reasonable attorney's fee for the examination of the 
 facts, and for advice and services in drawing up the 
 assignment 3 and securing it to be properly acknowledged 
 and placed on record. But at this point the control of the 
 assignor ceases, 4 and the assignor has no power to con- 
 tract with attorneys for any further services ; that is a 
 matter entirely within the control of the trustee. 
 
 >f 336. Authority to compromise.— The authority given to 
 the assignees "to compromise or compound any claim by 
 taking a part for the whole, when they shall deem it expe- 
 dient so to do," was considered by the New York Supreme 
 Court not to expressly authorize or require an illegal act 
 
 1 17 N. Y. 22; Norton v. Matthews, 3 See Bryce v. Foot. 25 S. ('. 467 ; 
 
 7 Misc. (N. Y.) 569, 28 N. Y. Supp. Drucker v. Wellhouse, 82 Oa. 129, 8 
 
 265 ; Matter of Gordon, 49 Hun (N. S. E. Rep. 40. 
 
 Y.) 370. 3 N. T. Supp. 589; Hill v. 4 Hill v. Agnew, 12 Fed. Rep. 888. 
 
 Agnew, 12 Fed. Rep. 232. A provision allowing the assignee 
 
 " Compare Campbell v. Wood- his "reasonable costs, charges and 
 
 worth, 24 N. Y. 305 ; Dimon v. Hazard, expenses, including the necessary at- 
 
 32 N. Y. 71. Where an assignment torney's fees,"' was held unobjectioo 
 
 gives preferences it cannot provide for able. National Hank of the Repub- 
 
 the payment of a counsel fee incurred lie; v. Hodge, 3 Ct App. (1> 
 
 by the preferred creditors in defend- 140 ; see Mills v. Pessels, 55 Fed. Rep 
 
 ing such preference. Simon v. Norton, 588. 
 56 Mo. App. 338.
 
 590 FRAUD OF ASSIGNEE. § $$7 
 
 to be done, and the court refused to vitiate the assign- 
 ment. 1 And where the instrument authorized the 
 assignee to compound " choses in action, taking a part for 
 the whole when he shall deem it expedient," the assignment 
 was sustained. This clause was held to vest no arbitrary 
 power in the assignee to compromise where such action 
 was neither necessary nor proper, but merely to confer 
 the discretion which the law recognizes to compound 
 doubtful and dangerous debts in cases where the safety 
 and interest of the fund demanded such action. " It 
 confers upon the assignee," said Finch, J., "no unlawful 
 or arbitrary power, and takes away from the creditors no 
 just protection." 2 On the other hand, the power given 
 in the assignment to the assignee to compromise with 
 creditors, is held to restrain the creditors until the attempt 
 to compromise is made. Thus they would be hindered, 
 and a delay even for a single day would be fatal to the 
 assignment, and whether the delay was directed by the 
 instrument, or justified by its provisions, or made neces- 
 sary in the execution of its provisions, made no difference. 3 
 
 § 337- Fraud of assignee. — The fiduciary character of his 
 position precludes the assignee from taking any advantage 
 of his influence as such, or from using, for purposes of 
 personal gain or profit, any information acquired while 
 acting in that capacity. Every agreement having such 
 
 1 Ginther v. Richmond, 18 Hun (N. assignment to prefer creditors, or to 
 y.) 234. change preferences made by the in- 
 
 2 Coyne v. Weaver, 84 N. Y. 391, strument, or to compromise the debts 
 I A in. Insolv. Rep. 395; S. i'., McCon- of the insolvent, or when the instrn- 
 nell v. Sherwood, 84 X. Y, 522 ; Bag ment does not declare the uses for 
 ley v. Bowe. 105 X. Y. ITT, 11 N. E. which the property was assigned, the 
 Rep. 386. assignment is fraudulent and there- 
 
 McConnell v. Sherwood, 81 X. V. fore void." Citing Caton v. Mosely, 
 
 531. In Noyes v. Sanger Bros., 8 25 Tex. 375 ; Home v. Chatham. <il 
 
 Tex. Civ. \pp. 393, 21 S. W. Rep. Tex. 36 ; McConnell v. Sherwood, si 
 
 L022, the court says : «« We think il is X. V. 522; Grover \. Wakeman, 11 
 
 the law, thai when an assignee of an Wend. (N. Y.) 203, 
 insolvent debtor lias power under the
 
 ^ 337 FRAUD i IF VSSIGNE] , 501 
 
 an object in view, made with the assignors, or with an) 
 of the creditors, especially if not approved by and com- 
 municated to all the parties in interest, is looked upon 
 by the courts with great suspicion and distrust, and if 
 tainted with the slightest evidence of fraud, concealment, 
 or misconduct on the part of the assignee in its procure- 
 ment, will be set aside as inequitable and unjust, and he 
 will not be permitted to reap any personal ad wantage 
 from it. 1 The fact of his having an interest conflicting 
 with his duties as assignee, is a sufficient ground for 
 removal 2 
 
 An assigment honestly made for a lawful purpose can- 
 not be defeated by proof that the assignee abused his 
 trust, misappropriated the property, or acted dishonestly 
 in its disposal. 3 Where the assignee is guilty of neglect 
 or misfeasance, the creditor feeling aggrieved should 
 apply to the court for a compulsory accounting, 4 or seek 
 his removal, and secure the appointment of a new trustee 
 or assignee. 5 Brown, J., said, in Olney v. Tanner : !1 "If 
 an assignment is legally complete and perfect, and is 
 intended to devote, and does devote, all the debtor's 
 property to the payment of his debts, it cannot be invali- 
 dated through the subsequent remissness or inefficiency 
 of the assignee. Creditors have ample remedy against 
 the assignee for his misconduct, if any ; and they should 
 be held to these remedies, rather than be allowed to sub- 
 vert the assignment on the claim that such remissness is 
 
 1 Clark v. Stanton, 24 Minn. 232, * Shattuck v. Freeman, 1 Mel 
 
 1 Am. Insolv. Rep. 86. See Failey v. (Mass.) 15. 
 
 Stockwell, 12 Pa. Co. Ct. Rep. 403. ft Olney v. Tanner, 10 Fed. Rep. 1 15. 
 
 a Brown v. Armstrong, 18 R. I. 537. Compare Glenny v. Langdon, 98 ' 
 
 3 Cuyler v. McCartney, 40 N. Y. 29, and cases cited ; Benfield v. Solo- 
 
 237; Olney v. Tanner, 10 Fed. Rep. raons, 9 Ves. 83; Matter of Cohen, 78 
 
 114, 115; Eieks v. Copeland, 53 Tex. N. Y. 248, 1 Am. [nsolv. Rep. 221. 
 
 5S1. But see Kelley-Goodfellow Shoe 6 10Fed. Rep. 114, 115. 
 
 Co. v. Scales, 12 i T . S. App. 01m, 58 
 
 Fed. Rep. 161, 7 C. C. A. 140.
 
 5 9^ 
 
 INCOMPETENCY OF ASSIGNEE. 
 
 §338 
 
 an evidence of original fraudulent intent." l On the other 
 hand, if the assignment is set aside as fraudulent, the acts 
 of the assignee, performed in good faith in the execution 
 of the trust, will not, as elsewhere shown, be disturbed ; 
 whether the assignment be fraudulent in fact or construct- 
 ively so, the assignee will not be held to account for the 
 property or its proceeds which have been paid out by him 
 in good faith. 2 
 
 § 338. Ignorance or incompetency of assignee as badge of 
 fraud. — The selection of an incompetent assignee is 
 regarded in the law as a badge of fraud. 3 Blindness in 
 the assignee is considered an indicium of fraud on the 
 part of the assignor who selects him. 4 So, choosing an 
 insolvent assignee has been said to be prima facie evi- 
 dence of an intent to defraud ; 5 as is the selection of an 
 assignee unfit to attend to business by reason of a 
 lingering disease. 6 It was with much doubt and hesita- 
 tion that entire latitude in the selection of the trustee or 
 
 1 Citing Hardmann v. Bowen, 39 N. 
 Y. 200 ; Shultz v. Hoagland, 85 N. Y. 
 465. 
 
 2 Smith v. Craft, 11 Biss. 351 ; 
 Wakeinan v. Grover, 4 Paige (N. Y.) 
 23 ; Knower v. Central Nat. Bank, 
 124 N. Y. 552, 27 N. E. Rep. 247; 
 Sullivan v. Miller, 106 N. Y. 643, 13 
 N. E. Rep. 772 ; Ames v. Blunt, 5 
 Paige (N. Y.) 13. In Pennsylvania 
 the assignment vests the title although 
 the assignee may be ignorant of the 
 assignment ; it is valid whether the 
 assignee accepts the trust or not, for 
 a trust will not fail for want of a 
 trustee (Mark's Appeal H5 Pa. St. 
 281 : sub imin. First Nat. Bank v. 
 Holmes, 1 Am. [nsolv. Rep. 150. See 
 Johnson v. Herring. 40 Pa. St. 415 ; 
 Blight \. Schenck, 10 Pa. St. 285), 
 but in New York the trust must be 
 assented to, ami the instrument 
 
 acknowledged by the assignee. 
 Rennie v. Bean, 24 Hun (N. Y.) 123, 
 1 Am. Insolv. Rep. 420 ; Hardmann 
 v. Bowen, 39 N. Y. 196 ; Britton v. 
 Lorenz, 45 N. Y. 51. If a party 
 allows his name to be used in a fraud- 
 ulent assignment and suffers the 
 property to be squandered he may be 
 compelled to account to creditors. 
 Hughes v. Bloomer, 9 Paige (N. Y.) 
 269. 
 
 3 Guerin v. Hunt, 6 Minn. 395. 
 
 4 See Cram v. Mitchell, 1 Sandf. 
 Ch. (N. Y.)252. 
 
 5 Reed v. Emery, 8 Paige (N. Y.) 
 417. But in some States the court 
 may uphold the deed and appoint a 
 receiver to carry it into effect. Cohn 
 v. Ward, 32 W. Va. 34. 9 S. E. Rep. 
 41. 
 
 8 Currie v. Hart, 2 San. If. Ch. (N.
 
 §338 
 
 [NCOMPETENCY < >F ASSIGN I I . 
 
 
 assignee was confided to the debtor, 1 and the insolvent 
 having the choice of his own assignee, 8 without consulta- 
 tion with or consent of his creditors, must see to it that he 
 appoints a person competent to protect the rights of all 
 parties interested under the assignment. If it appears 
 that the selection of an incompetent assignee* was made 
 in order to allow the assignor to control the administra- 
 tion of the estate, then the assignment will be avoided, 
 because such an intent would be a fraud upon creditors B 
 Where the assignee, however is selected without any 
 improper motive, and proves incompetent, he may be 
 removed upon a proper application, and a suitable person 
 substituted by the court to carry out the trust. 4 The 
 words "misconduct" and " incompetency," as used in the 
 New York statute relating to the removal of an assignee, 
 are construed to have no technical meaning, but were 
 intended to embrace all the reasons for which an assignee 
 ought to be removed. 5 
 
 1 See Cram v. Mitchell, 1 Sandf. 
 Ch. (N. Y.) 253. 
 
 2 See Burr v. Clement, 9 Col. 1, 9 
 Pac. Rep. 633. 
 
 3 In Davis v. Schwartz, 155 U. S. 
 638, 15 S. C. Rep. 237, the court says : 
 "The fact that the assignee or the 
 preferred creditor of an insolvent 
 debtor is a relative or intimate friend 
 is doubtless calculated to excite sus- 
 picion ; yet in reality there is nothing 
 unnatural in a dealer or trader who 
 is in need of credit, or a loan of 
 money to carry on his business, first 
 applying to his relatives for such 
 loans, and if the evidence be undis- 
 puted that the money was advanced, 
 the fact that the persons making the 
 loan are relatives, ought not to debar 
 them from receiving security. Their 
 rights are neither increased nor di- 
 minished by the fact of relationship." 
 Citing Magniac v. Thompson, 7 Pet. 
 
 38 
 
 348 ; Prewit v. Wilson, 103 U. S. '-"J ; 
 Estes v. Gunter, 122 U. S. 450, 7 8 I 
 Rep. 1275; Bean v. Patterson, 122 U. 
 S. 496, 7 S. C. Rep. 1298 ; Garner v. 
 Second National Bank, 151 U. S. 120, 
 432,14 S. C. Rep. 390: Aulman v. 
 Aulman, 71 Iowa 124, 32 N. W. Rep. 
 240. 
 
 4 See Guerin v. Hunt, Minn. 395. 
 
 B Matter of Colin. 78 N. V. 248, 1 
 Am. Insolv. Rep. 223. As to the 
 effect of the selection of an incompe- 
 tent assignee, see Jennings v. Pren- 
 tice, 29 Mich. 421 ; Connah v. 
 Sedgwick, 1 Barb. (N. Y.) 210; 
 Shryock v. Waggoner, 28 Pa. St. 430 ; 
 Shultz v. Hoagland, 85 N. Y. 4*14 ; 
 Baldwin v. Bucklaud, 11 Micl 
 Matter of Cohn, 7s N. V. 18, 12 Am. 
 Insolv. hep. 221 ; Montgomery v. 
 Kirksey, 26 Ala. 172 ; White v. Davis, 
 48 N. J. Eq. 22, 21 Ail. Rep. 1-7 : 
 Burrill on Assignments, ?! 92. The
 
 594 ASSIGNMENTS. § 339 
 
 In Bachrack v. Norton, 1 Mr. Justice Bradley said : 
 " Independently of a statute on the subject, we do not see 
 why, as a mere matter of law, an assignment should be 
 held void because the assignee is not a citizen or resi- 
 dent of the State where the assignment is made and the 
 debtor resides, provided he complies with the conditions 
 prescribed by the law. A citizen, or resident of another 
 State may, in a particular case, be a very proper assignee. 
 A large part of a debtor's assets may be located in a State 
 other than that in which he resides." 
 
 § 339 Transfers inuring as assignments. — Preferences in 
 the absence of a bankrupt act are usually upheld, though 
 avoided by the statutory system prevailing in some parts 
 of the Union. A curious policy exists upon this subject 
 in some of the States. 2 Thus in Alabama it is said to be 
 a settled proposition of law that a mortgage or deed of 
 trust which conveys substantially all the debtor s pi'opcrty 
 for the security of one or more particular creditors to the 
 exclusion of others, the intention of which is to give a 
 preference or priority of payment to the former, operates 
 as a general assignment under the statute, and inures to 
 the benefit of all the creditors equally. 3 In Illinois there 
 has been much confusion upon this feature of the law. 4 It 
 
 facl thai the assignee is required riage Works v. Ward, 101 Ala. 670, 
 
 to give a bond will not relieve the 14 So. Rep. 417. 
 
 assignor from the exercise of prudence 4 White v. Cotzhausen, 129 U. S. 
 
 in his selection. Hohnberg v. Dean, 329, 9 S C. Rep. 309 ; Weber v. Mick, 
 
 21 Kan 7Z, 131 111. 520, 23 N. E. Rep. 046; Far- 
 
 ' 132 U. S. 339, 10 S. C. Rep. 106. well v. Nilsson, 133 Til. 45, 24 N. E. 
 
 ! See Wymaii v. Mathews, 53 Fed. Rep. 74. See Tompkins v. Hunter, 
 
 Rep. 678; Kiser v. Dannenberg, 88 149 X. Y. 126, 43 N. E. Hep. 532: 
 
 Ga. 541, 15 S. K. Rep. 17. Kellog v. Richardson, 19 Fed. Rep. 
 
 'Shirley v. Teal, ff; Ala. 451 ; Code. 70, 72; Martin v. Hausman 14 Fed. 
 
 Ala. (1876). g 2126; Warren v. Lee, Rep. 160 ; Freund v. Vnegennan. 26 
 
 32 Ua. 11"; Stetson v. Miller, 36 Ala. Fed. Rep. 812, si 1 ; Perry \. Corby, 
 
 642; Fairfield Packing Co. v. Ken- 21 Fed. Rep. 737 ; Clapp v. Dittman, 
 
 tuckj Jeans Clothing Co. 110 Ala. 21 {■'<•<]. Rep. 15; Kerbs v. Ewing, 23 
 
 .-,::•;. 20 So. Rep. 6:;: AJiniston Car- Fed. Rep. 61)3: Stout v. Watson, 19
 
 § 339 a CONFLICTING i \-l.s. 
 
 is held in Mississippi that "any assignment thai purports 
 to convey only specific property must be treated as a 
 partial assignment until the contrary be shown. But, if it 
 be clearly shown that in fact it does convey all of the 
 assignor's property liable for his debts, then it become 
 general assignment, regardless of its terms, and must be 
 so dealt with." 1 In New Jersey several separate instru- 
 ments may be construed together as constituting an 
 assignment and declared void as creating a preference. ~ 
 A mortgage given by way of preference immediately 
 preceding an assignment will be construed as part of one 
 transaction, and if equality of distribution does not result 
 the transaction will not stand in Florida. 3 In Colorado 
 conveyances made prior to an assignment for creditors, 
 and in fraud of it, will not operate to invalidate the 
 assignment, but the assignee may recover the property so 
 fraudulently conveyed. 4 In New York, however, it was 
 held that a specific assignment of property by a debtor 
 for the benefit of one or a portion of his creditors did not 
 come within the provisions of the assignment act of that 
 State, and was not void by reason of its not being 
 executed in compliance with the provisions of the assign- 
 ment act. 5 
 
 § 339a. White v. Cotzhausen, and conflicting cases. — The 
 decision of the Supreme Court of the United States in 
 White v. Cotzhausen 6 to the effect that a preferential 
 transfer by an insolvent debtor of substantially his entire 
 estate, with a possible view to evade the provisions of 
 
 Ore. 251, 24 Pac. Rep. 230. See also 4 Cleghorn v. Sayre, 22 Col. 100,45 
 
 § 339a. Pac. Rep. 370. 
 
 1 Newman v. Black, 73 Miss. 244, 18 6 Royer Wheel Co. v. Fielding, 101 
 
 So. Rep. 543. N. Y. 504. 
 
 2 Stites v. Champion, 49 N.J. Eq. 6 129 U. S. 329, 9 B. C. Rep. 309. 
 
 446, 24 Atl. Rep. 403. Compare South Branch Lumber Co. 
 
 "Armstrong v. Holland, 35 Fla. v. Ott. 142 U. S. 629, 12 S. C Rep. 
 
 160, 17 So. Rep. 366. 318.
 
 596 CONFLICTING CASES. §339^ 
 
 the State Assignment Act operates as an assignment, has 
 resulted in much controversy over insolvent estates. 
 The decision purports to follow Illinois decisions, but 
 has been repudiated in that State, 1 and there is a tendency 
 not to regard it as a controlling authority. ~ In a later 
 case Mr. Justice Brewer said: "Several instruments 
 executed by a debtor, at about the same time, may be 
 considered as parts of one transaction, and in law form- 
 ing but one instrument ; and if, as thus construed, they 
 have the effect of a general assignment with preferences, 
 they are within the denunciation of the statute," 8 providing 
 that no general assignment for the benefit of creditors 
 shall be valid unless made for the benefit of all creditors 
 in proportion to their respective claims. The attempts 
 to construe meanings into these instruments, which were 
 probably not in the contemplation of the parties at the 
 time such instruments were executed, have not been 
 uniformly fortunate. 
 
 The case of White v. Cotzhausen 4 was not followed in 
 Tompkins v. Hunter. 5 In the latter case the insolvent 
 made a preferential transfer by bill of sale of all his prop- 
 erty to one creditor. A technical general assignment was 
 not made and the court refused to construe the transfer 
 to the preferred creditor so as to convert it into a general 
 assignment. Martin, J., said : " There is a broad and 
 well defined distinction between such an assignment 
 and a deed or bill of sale. The former is a transfer by a 
 
 1 Weber v. Mick. 131 111. 520. 23 N. Har.lt v. Heidweyer, 152 U. S. 556, 14 
 
 E. Rep. 646; Yoang v. Clapp, 117 111. S. C. Rep. 671. 
 
 184, 32 N. E. Rep. 1ST, 35 Ed. 372; 3 South Branch Lumber Co. v.ott. 
 
 FarweLl v. Nilsson, 133 Ell. 45, 24 N. 142U.S 622, 629.12S.C. Rep. 318, fol- 
 
 E. Rep. 74. Compare Tompkins v. lowing Van Patten v. Burr, 52 Eowa 
 
 Hunter. 1 19 N Y. 126, 43 \. E. Rep. 518, 3 N. W. Rep. 524. See Ellison v. 
 
 Moore v. Meyer, 47 Fed. Rep. 99; Moses, 95 Ala. 321, n So. Rep. 347. 
 
 I l.i 1 - it \. Heidweyer, 152 CJ. S. 556, I I 4 129 EJ. s 329, 9 s. C. Rep. 309. 
 
 Rep. 671. 1 1 lit N. Y. 117, 13 N. E. Rep. 
 
 : Moore v. Meyer, 17 Fed. Rep. ( .t!) ; 532.
 
 § 339 a CONFLICTING I ASKS. 
 
 
 debtor of his property to another in trust to sell, convert 
 it into money, and distribute the proceeds among his 
 creditors. It implies a trust, and contemplates the inter, 
 vention of a trustee. The others import an absolute sale 
 and transfer of the title, to be held and enjoyed by the 
 purchaser without any attending trust." In Berger v. 
 Varrelmann * the court decided that a preferential con- 
 fession of judgment followed by a general assignment was 
 voidable under the statute of 1887, prohibiting prefer- 
 ences in excess of a particular portion of the estate, 
 and the same rule was followed in Spelman v. Frerd- 
 man.- The cases were followed in later decisions 
 where the confession was a part of the scheme which was 
 to culminate in a general assignment and hence was 
 within the prohibition of the assignment act. 3 In Man- 
 ning v. Beck 4 the court says: " But the statute does not 
 and was not intended to prevent a creditor from obtaining 
 payment of or a security, and thereby a preference for his 
 debt, even from an insolvent debtor." The court further 
 adds : " The debtor might also neglect to make an assign- 
 ment and then it would look as if the acts of preference 
 would be legal." In Central Nat. Bank v. Seligman, 5 
 /indrews, Ch. J., said : " If no assignment had been made 
 the judgments could not have been assailed by the other 
 creditors." It results from these decisions that in some of 
 the States at least the danger of forfeiting a prefer- 
 ence is avoided in cases where the insolvent omits to 
 follow up the preferential act by making a voluntary 
 assignment. 
 
 1 127 N. Y. 281, 27 N. E. Rep. 1065. Hardware Co. v. Implement Co., 47 
 
 2 130 N. Y. 421, 29 N. E. Rep. 705. Kan. 423, 28 Pac. Rep. 171 ; Watkina 
 
 3 See Manning v. Beck, 129 N. Y. Nat. Bk. v. San. Is. 47 Kan. 59 
 1, 29 N. E. Rep. 90; Central Nat. Pac. Rep. 618. 
 
 Bank v. Seligman, 138 N. Y. 435, 34 4 129 N. Y. 14. 16, 29 N. E. Rep. 90. 
 
 N. E. Rep. 196 ; Abegg v. Bishop, 142 8 138 N. V 135, 445, 34 N. E. Rep. 
 
 N. Y. 286, 36 N. E. Rep. 1058. See 196.
 
 598 ASSETS EXCEEDING LIABILITIES. § 34-0 
 
 § 340. Assets exceeding liabilities. — The question often 
 arises as to what classes of persons are entitled to make 
 assignments. Where it is clear that the assets are largely in 
 excess of the liabilities of the debtor, it may raise a presump- 
 tion of an intent to hinder and delay creditors in the collec- 
 tion of their just demands, and amount to 2Lprt7>ia facie case 
 of fraud. 1 In the Missouri Court of Appeals an assign- 
 ment which, after reciting that the assets amounted to 
 three times the liabilities, clothed the trustees with dis- 
 cretionary power to carry on the business of the firm " for 
 such time as the trustees shall deem for the best interest 
 of the creditors, and necessary for the purpose of pre- 
 venting shrinkage and loss, and of closing out and liqui- 
 dating the same to the best advantage," was declared 
 voidable as tending to hinder, delay, and defraud cred- 
 itors. 2 It is sometimes contended that, as assignments 
 for the benefit of creditors are generally made by embar- 
 rassed and insolvent debtors, such dispositions of prop- 
 erty can only be made by that class of persons. " This 
 doctrine," said Comstock, J., "has no foundation in 
 principle or authority. These assignments are in their 
 nature simply trusts for the payment of debts. The 
 power to create such trusts is certainly not peculiar to 
 insolvent men. On the contrary, it is a power more 
 unquestionably possessed by men who are entirely solvent. 
 . . . . 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. In that con- 
 dition the claims of creditors are in justice paramount, 
 and the debtor's power to dispose of his estate, even for 
 their benefit, was not established without a struggle. In 
 short, it was the insolvency rather than the solvency of a 
 
 1 Livermore v. Northrup, 44'N. Y. -First Nat. Bank v. Hughes, 10 
 
 109 ; Guerin v. Hunt, 8 Minn 477. Mo. App. 14. 
 See Bates v. Ableman. Y-) Wis. 644.
 
 § 341 ASSIGNMENTS L'O PREVENT PRE] ERENCE. 
 
 
 debtor which suggested the doubt in regard to the right 
 of putting the whole or any part of his property in trust 
 for the benefit of creditors." 1 As gathered from the 
 authorities, the vital question in these cases is, whether 
 the transfer is honestly made with the sole intention of 
 applying the property in satisfaction of the creditor,' 
 demands, or whether it is merely a scheme or contrivance 
 to place the debtor's estate, for a time, beyond the reach 
 of the creditors' remedies, prevent a sacrifice of the 
 property, secure the payment of the creditors' claims, 
 and ultimately realize a surplus to the assignor. In the 
 latter case it should clearly be regarded as a plan devised 
 to hinder and delay creditors. Resort by a solvent man 
 to the methods devised for insolvents is justly calculated 
 to arrest attention and excite the most searching inquiry 
 as to hidden motives. 
 
 § 341. Assignments to prevent preference. — According to 
 the doctrine of the common law, the validity of an assign- 
 ment cannot be assailed simply because its effect is to 
 prevent a party from obtaining, by judgment and execu- 
 tion, a priority and preference over other creditors 2 
 Temporary interference with particular creditors in the 
 prosecution of their claims by the ordinary legal remedies, 
 is a necessary and unavoidable incident to a just and 
 lawful act, which, however, in no respect impairs the 
 validity of the transaction. 3 The rule of equity requires 
 the equal and ratable distribution of the debtor's prop- 
 erty for the benefit of all his creditors. It would be 
 strange indeed if the debtor, by making a disposition of 
 his property with the design to effectuate the application 
 of this rule, should be adjudged guilty of hindering and 
 delaying his creditors. This precise question arose in 
 
 1 Ogden v. Peters, 21 N. Y. 24. Mayer v. Helhuan, 91 U. S. 500. 
 
 5 Reed v. Mclntyre, 98 U S. 510 
 See Chap. XXV.
 
 6(X) ASSIGNMENTS TO PREVENT PREFERENCE. § 341 
 
 Pickstock v. Lyster. 1 In that case a debtor, being sued, 
 made an assignment by deed of all his effects, for the 
 equal benefit of his creditors. The jury having been 
 instructed that they must find the deed void if made with 
 the intent to defeat the plaintiff in his execution, returned 
 a verdict in his favor. But the verdict was set aside upon 
 the ground that the jury was misdirected. Lord Ellen- 
 borough held that the assignment was "to be referred to 
 an act of duty rather than of fraud, when no purpose of 
 fraud is proved. The act arises out of a discharge of the 
 moral duties attached to his character of debtor, to make 
 
 the fund available for the whole body, of creditors 
 
 It is not the debtor who breaks in upon the rights of the 
 parties by this assignment, but the creditor who breaks in 
 upon them by proceeding in his suit. I see no fraud ; 
 tlfe deed was for the fair purpose of equal distribution." 
 In the same case, Bayley, J., said: "It seems to me that 
 this conveyance, so far from being fraudulent, was the 
 most honest act the party could do. He felt that he had 
 not sufficient to satisfy all his debts, and he proposed to 
 distribute his property in liquidation of them ; this was 
 not acceded to, for the plaintiff endeavored by legal pro- 
 cess to obtain his whole debt, the obtaining of which 
 would have swept away the property from the rest of the 
 creditors." 2 If the assignment has been fairly and legally 
 made, and creditors obtain a benefit from it, their rights 
 cannot be divested by proof of any stratagem practiced 
 
 1 3 Maule & S. :!7 1 . only object and consideration, as 
 
 • See Pike v. Bacon, 21 Me. 281 ; stated in the instrument, was to 
 
 Hauselt v. Vilmar, 2 Abb. N. C. (N. defeat the liability of tbe property to 
 
 Y.) 222, affi'd 76 X. Y. 680: Baldwin be attached, whereby some of the 
 
 v. Peet, 22 Tex. 70S ; Bowen v. Bram- creditors might obtain an unjust pref- 
 
 idge. 6 C. & !'. 140. See Solbird v. erence, and to secure it to be applied 
 
 Anderson, 5 T. R. 235. It is said, for the benefit of all the creditors, 
 
 however, in Dalton v. Currier, 40 N. the assignment was fraudulent and 
 
 II 246, thai as the avowed purpose void. 
 and aim <>!' tli^ assignment, and its
 
 § 34 Ia EXCESSIVE^PREFERENCES. C HJ \ 
 
 by the assignor to prevent attachments till this object 
 could be secured. If no attachments were issued, even 
 fraud practiced by the debtors to defeat such pro. 
 would give the creditor no lien upon the property ; not- 
 withstanding the grossest dishonesty of this kind, it would 
 remain as it was; and so long as it continued the prop- 
 erty of the debtors, unaffected by any attachments, no 
 fraudulent conduct, calculated to impose upon a creditor 
 and keep him at bay, would disqualify the debtor from 
 making a valid assignment under the statute for the 
 benefit of creditors generally. 1 Fraud or misrepresenta 
 tion on the part of the assignor, entering into or affecting 
 the debt of a particular creditor, will not be sufficient to 
 annul a general assignment in favor of creditors. 2 
 
 Jaques v. Greenwood, 3 constitutes a possible excep- 
 tion to the rule above stated. A judgment had been 
 entered against the members of a firm by default ; they 
 secured a stay of proceedings upon pretence of a defense 
 to the action, which they failed to show, and upon an 
 assurance given by their attorney that no assignment 
 would be made. Meanwhile a preferential assignment 
 was filed, and the judgment-creditors were prevented 
 from realizing anything upon execution issued on the 
 judgment. The assignment was, upon this state of facts, 
 adjudged to be made to hinder and delay creditors in the 
 collection of their debts. 
 
 § 341a. Excessive preferences.— In New York a prefer- 
 ence in excess of the amount allowed by statute does not 
 invalidate the instrument. 4 Gray, J. said: ''The pur- 
 
 1 Pike v. Bacon, 21 Me. 286. 3 12 Al»b. Pr. (N. Y. 23 1. 
 
 * Kennedy v. Thorp. 51 N. Y. 174; 4 Central Nat. Rank v. Seligman, 
 
 Spencer v. Jackson, 2 R. I. 35; Lin- 138 N. Y. 435, 34 X. E. Rep. 196; 
 
 ingerv. Raymond, 12 Neb. 19, 9 N. Cutter v. Hume, 43 St. Rep. (N ^ 
 
 W. Rep. 550; Horwitz v. Ellinger, 31 242, 17 N. V. Supp. 255; Rose v. 
 
 Md. 504. But compare Waverly Nat. Renton, 37 St. Rep. (N. Y.) 683, 13 
 
 Bank v. Halsey, 57 Barb. (N. Y.) 249. X. Y. Supp. 592.
 
 602 PREFERENCE OF LABORERS. § 341b, 34IC 
 
 pose of the statute is to prevent any preference, other 
 than that for wages or salaries of employees, beyond one- 
 third of the assigned estate, and if that amount is 
 exceeded, the penalty is not the annihilation of the assign- 
 ment, but the reduction of the preference to the pre- 
 scribed limit. 1 Where that is the condition of affairs under 
 a general assignment of the debtor's property, the remedy 
 of creditors aggrieved by their debtors' act is by an action 
 in aid of the assignment for the benefit of the body of 
 creditors, if their rights are not asserted by the 
 assignee.' 12 
 
 § 341b. Preferences of laborers. — In New York 3 it is 
 provided that wages and salaries due employees shall in 
 assignment proceedings be preferred before any other 
 debt. The omission to prefer such debts will not invali- 
 date the assignment, as the instrument will be read in 
 connection with the statute. 4 
 
 § 341c. Notice to preferred creditor. — There seems to 
 be a struggle in the authorities over the question whether 
 the preference given in anticipation of making an assign- 
 ment may be avoided in all cases, or whether it will be 
 avoided only in cases where the preferred creditor had 
 knowledge of the impending assignment and knew of the 
 debtor's insolvency at the time of receiving the preference. 
 In a Pennsylvania case 5 this language is used: "Nor 
 can we agree that a mere intent of a debtor, unexpressed 
 
 1 Citing Central Nat. Bank v. as amended by Chap. 328, Laws of 
 
 Seligman, 138 N. Y. 435, 34 N. E. 1884. 
 
 Rep. 196. 4 Richardson v. Tlmrber, 104 N. Y. 
 
 4 Maass v. Falk, 146 N. Y. 40, 40 N. 606, 11 N. E. Rep. 133; Burley v. 
 
 E. Rep. 504. Citing Spelman v. Hartson, 109 N. Y. 656, 16 N. E. Rep. 
 
 Freedman, 130 N. Y. 421, 29 N. E. 684 ; Roberts v. Tobias, 120 N. Y. 5, 23 
 
 Rep. 765; Central Nat. Bank v. N. E. Rep. 1105 ; Dutchess County 
 
 Seligman, 138 N. Y. 435. 34 N. E. Mutual Ins. Co. v. Van Wagonen, 132 
 
 Rep. 196 ; Abegg v. Bishop, 142 N. Y. N. Y. 402, 30 N. E. Rep. 971. 
 
 286, 36 N. E. Rep. 1058. 5 Lake Shore Banking Co. v. Ful- 
 
 * See Chap. 466, Laws of 1877, § 29, ler, 110 Pa. St. 156, 1 Atl. Rep. 731.
 
 § 34!C NOTICE TO PREFERRED CREDITOR. 
 
 to the creditor, to give him a preference by paying or 
 securing the debt, although at the time he contemplated, 
 and soon after executed, a general assignment, operated to 
 defeat such preference on the ground that it is contrary 
 to the act of 1843. Such an intent is not unlawful and 
 cannot be inferred from a proper act. But even if it were, 
 the creditor who has a perfect right to accept payment or 
 security of his debt, and has not participated in the 
 alleged unlawful intent, should not be compelled to forfeit 
 his preference on that account. He at least is innocent 
 and may in good conscience hold the advantage he has 
 obtained." The New York Court of Appeals followed 
 this case in Manning v. Beck. 1 In Berger v. Varrel- 
 mann^it is intimated that a want of knowledge on the 
 part of the creditor of the debtor's intention to prefer him 
 on the eve of an assignment will not save the preference. 
 In Spelman v. Freedman 3 the preferred creditor mani- 
 festly had knowledge of the insolvency and contemplated 
 assignment, and his preference was lost. In Central 
 National Bank v r . Seligman 4 the preference was cut down 
 to the statutory limit of one-third of the estate, but the 
 assignment was otherwise sustained. In Maass v. Falk 6 
 the preference was upheld, as it appeared that the cred- 
 itor was innocent of any knowledge of the impending 
 assignment, and Manning v. Beck 6 was followed. These 
 two cases are recognized and re-stated in Galle v. Tode,' 
 but the preferred creditor in the last case did not have a 
 valid levy and the preference was for that reason lost. 
 In the lower courts in New York 8 various conclusions 
 
 1 129 N. Y. 1, 15, 29 N. E. Rep. 90. 6 129 N. Y. 1, 29 N. E. Rep. 90. 
 
 3 127 N. Y. 281, 27 N. E. Rep. 1065. ' 148 N. Y. 270, 280, 42 N. E. Rep. 
 
 3 130 N. Y. 429 29 N. E. Rep. 765. 673. 
 
 See Warner v. LittlefieM, 89 Mich. 8 A.begg v. Bishop, 66 Hun (N. Y.) 
 
 329, 50 N. W. Rep. 721. 8, 20 N. Y. Supp. 810 ; reversed, 142 
 
 4 138 N. Y. 435, 34 N. E. Rep. 196. N. Y. 286. 36 N. E. Rep. 1058; London 
 
 5 146 N. Y. 42, 40 N. E. Rep. 504. v. Martin. 79 Hun (N. Y. i 239, 29 N .
 
 604 
 
 BILL OF PARTICULARS. 
 
 §§ 34id. 342 
 
 have been formulated, but it would seem to be the pre- 
 vailing idea in that State at present, that an innocent 
 preferred creditor may hold his advantage as against a 
 subsequent voluntary assignment. 
 
 § 34id. Bill of particulars. — As already shown, 1 the 
 courts are not disposed to readily grant applications for 
 bills of particulars of the alleged fraudulent acts upon 
 which the creditor relies in attacking an assignment. 2 
 
 § 342. Threatening to make assignment. — Threatening 
 to make a voluntary assignment seems to constitute no 
 ground for provisional relief by attachment in New 
 York, 3 provided the threat is not to make a fraudulent 
 assignment. " An unlawful coercion of a creditor," says 
 Fullerton, J., "cannot be predicated of the declaration of 
 an intention by a debtor to do what the law sanctions as 
 right and proper." 4 
 
 Y. Supp. 396 ; Johnson v. Rapalyea, 
 1 App. Div. (N. Y.) 463, 37 N. Y. 
 Supp. 540. 
 
 1 See § 162a. 
 
 5 Passavant v. Cantor, 21 Abb. N. 
 C. (N. Y.) 259, 1 N. Y. Supp. 574. 
 
 3 Kipling v. Corbin, 66 How. Pr. 
 (N. Y.) 13 ; Evans v. Warner, 21 Hun 
 (N. Y.) 574 ; Dickerson v. Benham, 20 
 How. Pr.-(N. Y.)343. 
 
 4 Spaulding v. Strang, 37 N. Y. 139; 
 Davis v. Howard, 73 Hun (N. Y.) 347, 
 26 N. Y. Supp. 194 ; Farwell v. Fur- 
 niss, 67 How. Pr. (N. Y.) 188. In 
 the case of National Park Rank v. 
 Wliitmore, 104 N. Y. 305, 10 N. E. 
 Rep. 524, Earl, J., said: "But we 
 think there were sufficient facts set 
 forth in the affidavits to give the court 
 jurisdiction to <k't ermine whether or 
 not the defendants in threatening to 
 make and in making the assignment, 
 were actuated by a fraudulent intent. 
 A few days before the assignment 
 was made the defendants reported 
 
 that they were entirely solvent and 
 could pay all their debts in full, and 
 they made a statement of their affairs 
 showing a large surplus of assets over 
 liabilities. Soon after these repre- 
 sentations they claimed that they 
 could not pay their debts in full, and 
 that they were insolvent, and pro- 
 posed to pay their creditors a compro- 
 mise of fifty cents on the dollar, 
 payable in nine, twelve and fifteen 
 months without security. The evi- 
 dence tended to show that they had 
 been engaged in a prosperous busi- 
 ness, yielding them large profits, and 
 they gave no satisfactory or intelligi- 
 ble explanation of their sudden al- 
 leged insolvency. They threatened 
 that unless their offer of compromise 
 was accepted they would make an 
 assignment, preferring Whiting, and 
 that then the rest of their creditors 
 would get little or nothing. The 
 efforts of the defendants, with the 
 co-operation of their assignee after
 
 §§ 342a, 343 antecedent agreement. 
 
 On the other hand, there are cases tending to supporl 
 the view that a debtor cannot use the power he pn 
 of assigning his property preferentially to intimidate 
 creditors into abstaining from pressing the remedies 
 allowed by law to collect debts, without beim-- chargeable 
 with intent to defraud creditors. 1 In Gasherie v. App 
 the court observed : "The law allows a debtor to assign 
 his property to pay his debts, and even to make prefer- 
 ences ; but compels him to make his selection without 
 any conditions for personal gain to himself ; thus he can- 
 not, by an assignment, hold out a hope of an extra share 
 of his assets, or a fear of loss of any participation therein 
 as a means to induce a creditor to abandon all, or any part 
 of his claim, or to forbear pursuing his legal remedies 
 therefor." This certainly embodies the safer rule. 
 
 § 342a. Antecedent agreement. — As elsewhere shown, ' 
 a secret agreement to prefer a creditor is not fraudulent, 
 and such a preference will be upheld. 4 
 
 § 343. Construction of assignments. — In construing the 
 provisions of a general assignment, we are to be gov- 
 erned by the rules applicable to ordinary conveyances. 5 
 
 the assignment, apparently to coerce solvent, to coerce a favorable conipro- 
 
 a compromise of twenty-five cents on mise from their creditors, .and thus 
 
 the dollar, their offer 'to fix it up' secure a benefit to themselves." 
 
 with a creditor afterward if he would ' See Anthony v. Stype, 19 Hun 1 N . 
 
 assent to the compromise, their se- Y.) 267; Gasherie v. Apple, 14 Abb. 
 
 lection of a foreign assignee, the rela- Pr. (N. Y.) 64 ; Livermore v. Rhodes, 
 
 tions between him and them, and the 27 How. Pr. (N. Y.) 0O6. 
 
 secret promise of a future preference, ' 14 Abb. Pr. (N. Y.) 64, 68. 
 
 are also pertinent facts. The court at 3 See § 394. 
 
 General Term, looking at no one fact, * National Park Bk. v. Whitmore, 
 
 but at all the facts, before and after 104 N. Y. 304. 10 N. E. Rep. 524 . 
 
 the assignment, could, we think, find Pierce Steam Heating Co. v. Ransom, 
 
 that the assignment was threatened 16 App. Div. (N. Y.) 260. 
 
 and made by the assignors, not solely B Townsend v. Stearns. 32 N. V. 
 
 for the honest purpose of devoting 213; Bagley v. Bowe, 105 N. Y. 171, 
 
 their assets to the payment of their UN. E. Rep. 386; Khappv. MoGowan, 
 
 just debts, but, while not actually in- 96 N. Y. 75 ; Crook v. Rindskopf, 105
 
 6o6 
 
 CONSTRUCTION OF ASSIGNMENTS. 
 
 §343 
 
 Such a construction should be adopted as will sustain the 
 assignment, rather than defeat it, ] especially if the effect 
 of overturning the instrument by reason of its preferential 
 surroundings results in creating a preference in favor of 
 a subsequent attaching creditor. 2 Preferential assign 
 ments are not usually encouraged. 3 The law tolerates 
 rather than approves such instruments, and they can only 
 be supported when they make a full and unconditional 
 surrender of the property to the payment of debts. 4 In 
 Read v. Worthington, 5 in construing a general assign- 
 ment, the court said : " There are three general rules of 
 interpretation, which, applied to this case, show that the 
 
 N. Y. 485, 12 N. E. Rep. 174 ; Ginther 
 v. Richmond. 18 Hun (N. Y.) 234. 
 Compare Rapalee v. Stewart, 27 N. 
 Y. 315. 
 
 1 Roberts v. Buckley, 145 N. Y. 
 323, 39 N. E. Rep. 966. 
 
 3 South Branch Lumber Co. v. Ott, 
 142 U. S. 622, 12 S. C. Rep. 318. 
 
 » Nichols v. McEwen, 17 N. Y. 24. 
 See Boardnian v. Halliday, 10 Paige 
 (N. Y.) 230. 
 
 4 Griffin v. Barney. 2 N. Y. 371. 
 
 5 9 Bosw. (N. Y.) 626. In Crook v. 
 Rindskopf, 105 N. Y. 485, 12 N. E. 
 Rep. 174, Ruger, Ch. J., said : "While 
 heretofore there has been some diver- 
 sity of opinion in the courts in respect 
 to the proper rule to be applied in the 
 construction of such instruments, we 
 think the tendency of modern de- 
 cisions, especially those of most ap- 
 proved authority, has been to adopt 
 the same rules which obtain in the 
 interpretation of other contracts. 
 (Knapp v. McGowan, 96 N. Y. 75, 87 ; 
 Rapalee v. Stewart, 27 N. Y. 310, 315; 
 Benedict v. Huntington, 32 X. Y. 219; 
 Townsend v. Steam-, 32 X. Y. 209.) 
 Among those rules is thai requiring 
 such an interpretation as will render 
 the instrumenl consistent with inno- 
 cence, and the general rules of law. in 
 
 preference to such as would impute a 
 fraudulent intent to the assignor, or 
 defeat the general purpose and intent 
 of the conveyance. (Bagley v. Bowe, 
 105 N. Y. 171, 11 N. E. Rep. 386 ; Gin- 
 ther v. Richmond, 18 Hun [N. Y.J 232, 
 234 ; Rapalee v. Stewart, 27 N. Y. 315 ; 
 Benedict v. Huntington, 32 N. Y. 
 219 ; Townsend v. Stearns, 32 N. Y. 
 209.) Such transfers are sanctioned 
 by law, and are, when made, like 
 other contracts, to be fairly and rea- 
 sonably construed with a view of 
 carrying out the intentions of the 
 parties making them. When au- 
 thority to do an act is conferred in 
 general terms it will be deemed to be 
 and to have been intended to be ex- 
 ercised within the limits prescribed 
 by law. (Kellogg v. Slauson, 11 N. 
 Y. 302.) In such cases, as in others, 
 doubtful and ambiguous phrases ad- 
 mitting of different meanings, are, in 
 accordance with the maxim, ' ut res 
 magis valeat gudm pereat,'' to be so 
 construed as to authorize a lawful 
 disposition of the property only, al- 
 though there may l>c general lan- 
 guage in the instrument susceptible 
 of a different construction. (Town- 
 send v. Stearns, 32 N. Y. 209.)"
 
 §343 CONSTRUCTION OF ASSIGNMENTS. 607 
 
 intent on the face of the instrument was honest to cred- 
 itors : Firstly, that the general intent of the parties is to 
 govern ; secondly, that the leaning of all constructions 
 should be in favor of supporting, and not overthrowing 
 an instrument; and thirdly, that fraud is not to be pre- 
 sumed, 1 and assignments are subject to no different 
 rules." 2 Courts are therefore under no obligation tube 
 astute to destroy them, 3 and an unreasonable construction 
 should not be given to the language used in the assign- 
 ment to render it void. 4 The scope of the assignment is 
 to be gathered from the whole instrument, 5 and where 
 two constructions are possible, that is to be chosen which 
 upholds and does not destroy the instrument." "A 
 court," said Finch, J., " may wrestle, if need be, with 
 unwilling words to find the truth or preserve a right 
 which is endangered." " It must be remembered that if 
 a general clause be followed by special words which 
 accord with the general clause, the deed should be con- 
 strued according to the special matter. 8 The case may, 
 however, be taken out of its operation by the evident 
 intent of the parties and the clearly expressed purpose 
 
 1 Citing Kellogg v. Slauson, 15 6 Price v. Haynes, 37 Mich. 487, 
 Barb. (N. Y.) 56; Kellogg v. Barber, 1 Am. Insolv. Rep. 137. 
 
 14 Barb. (N. Y.) 11; Barnum v. "Coyne v. Weaver, 84 X. Y. 390. 
 
 Hempstead. 7 Paige (N. Y.) 569 ; See Townsend v. Stearns, 32 N. Y. 
 
 Kuhlman v. Orser, 5 Duer (N. Y.) 250 ; 209 ; Brainerd v. Dunning, 30 X. Y. 
 
 Bank of Silver Creek v. Talcott, 22 211 ; Campbell v. Woodworth, 24 X. 
 
 Barb. (N. Y.) 5(51. See £§ 5, 6. Y. 304 ; Benedict v. Huntington. 33 
 
 2 Citing Pine v. Rikert, 21 Barb. N. Y. 219 ; Coffin v. Douglass, 61 T< \ 
 (N. Y.)469. 406. 
 
 3 See Turner v. Jaycox, 40 Barb. 7 Coyne v. Weaver, 84 X. Y. 390, 
 (N. Y.) 164 ; affi'd, 40 N. Y. 470. Es- 1 Am. Insolv. Rep. 392. A voluntary 
 pecially Townsend v. Stearns, 32 N. assignment act is to be liberally con- 
 Y. 209; Grover v. Wakeman, 11 strued. White v. Cotzhausen, 129 U. 
 Wend. (N. Y.) 193; Kellogg v. S. 329, 9 S. C. Rep. 309, and cases 
 Slauson, 11 N. Y. 302. cited. 
 
 4 Whipple v. Pope, 33 111. 334; Bank 8 Munro v. Alain , 2 I laines (N. Y | 
 v. Martin, 96 Tenn. 5, 33 S. W. Rep. 320. See Moore v. Griffin, 22 Me. 
 565, citing the text. 350; Wilkes v. Ferris, 5 Johns 
 
 Y.) 335.
 
 6o8 OBNOXIOUS PROVISIONS. §344 
 
 of the deed. 1 Thus where the instrument under con- 
 sideration is a general assignment of all the property and 
 effects of the assignor, and the intent to place all the 
 property of every description within the trust is apparent 
 in every part of the deed, although it contain a reference 
 to a schedule of the assigned affects as annexed, this will 
 not be construed as indicating an intention to qualify or 
 limit the comprehensive or general language, and prop- 
 erty not mentioned in the schedule will pass to the 
 trustee 2 In construing assignments the rule favoring 
 constructions " ut res majis valeat quain pa-cat" must be 
 observed. 3 In Kansas, it is said: "It is the creditors 
 who are the real parties beneficially interested in the 
 assignment. Unless it is apparent that they are to be 
 defrauded the assignment should be upheld.'' 4 
 
 ^ 344. Explaining obnoxious provisions. — I he acts relat- 
 ing to assignments should be liberally construed. 5 When 
 it is shown that the obnoxious provisions of the deed 
 were not made deliberately, understandingly, or even 
 knowingly, then the law's presumption of the intent to 
 defraud is rebutted. The reason ceasing, the rule ceases. 
 In an inquiry collateral to the deed it is competent to 
 show by parol that the deed was made in its objection- 
 able form by the mistake of the scrivener, and without 
 the intention and knowledge of the parties to it, and so 
 to rebut the presumption of fraud. 
 
 § 345. Assignments held void. — It would be an arduous 
 task to collate and cite the numerous cases in which 
 
 1 Piatt v. Lott, 17 N. Y. 478. * Marshall v. Van De Mark, 57 
 
 > Eolmes v. Hubbard, 60 N. V. 185: Kan. 310, 46 Pao. Rep. 308. 
 
 Turner v. Jaycox, 10 N. Y. 470; Emi- ■■ Farwell v. Cohen, 138 111. 216,28 
 
 -rant [nd siiv. Bank v. Roche, 93 N. N. E. Rep. 35, 32 1.1. 893. 
 
 V. 377. ' Farrow v. Hayes. :.l Md. 500, 501. 
 
 * Baum v. Pearce, 67 Mi<s. Too. 7 See Carpenter v. Buller, 8 M. & W. 
 
 So. Rep. 548 212; Parks v. Parks, 19 Md. 323; 
 
 Smith v. Davis, 49 Md. 470.
 
 §345 
 
 A.SSIGNMEN fS HELD V( >||>. 
 
 
 voluntary assignments have been overturned al the in 
 gation of creditors or their representatives. The importanl 
 features of some of the cases will, however, be briefly 
 noticed. The instrument was avoided where it provided 
 that the debtor " shall have the privilege of continui 
 his business for one year." 1 In fact, it may be regarded 
 as settled that any reservation of benefit to the grantor is 
 considered fatal to the transfer. 2 Stipulating for pos 
 sion of the assigned property,' 1 and providing for the 
 payment of individual debts out of copartnership assets, 4 
 are additional illustrations of obnoxious provisions which 
 will annul the instrument. 5 So, as we have seen, the 
 instrument is rendered void by intentional omissions of 
 assets, 6 and the insertion of fictitious liabilities. 7 Whether 
 the insertion of a provision for the continued employment 
 of the assignor furnishes some evidence of fraudulent 
 
 'Holmes v. Marshall, 78 N. C. 262. 
 
 * Cheatham v. Hawkins, 76 N. C. 
 335 ; Bigelow v. Stringer, 40 Mo. 195 ; 
 Griffin v. Barney, 2 N. Y. 371 ; Leitch 
 v. Hollister, 4 N. Y. 211 ; Mackie v. 
 Cairns, 5 Cow. (N. Y.) 547 ; Harris v. 
 Sumner, 2 Pick. (Mass.) 129; Marks 
 v. Bradley, 69 Miss. 1, 10 So. Rep. 922 ; 
 Burrill on Assignments, § 343. 
 
 3 Billingsly v. Bunce, 28 Mo. 547 ; 
 Reed v. Pelletier, 28 Mo. 173 ; Brooks 
 v. Wimer, 20 Mo. 503 ; Stanley v. 
 Bunce, 27 Mo. 269. See Cheatham 
 v. Hawkins, 76 N. C. 335 ; Harman v. 
 Hoskins, 56 Miss. 142 ; Joseph v. Levi, 
 58 Miss. 843. 
 
 4 Wilson v. Robertson, 21 N. Y. 587; 
 Schiele v. Healy, 61 How. Pr. (N. Y.) 
 73, 1 Am. Insolv. Rep. 417 ; Roe v. 
 Hume, 72 Hun (N. Y.) 1, 25 N. Y. 
 Supp. 576 ; Booss v. Marion, 129 N. Y. 
 541, 29 N. E. Rep. 832; Haynes v. 
 Brooks, 116 N. Y. 487, 22 N. E. Rep. 
 1083: Piatt v. Hunter, 11 Weekly 
 Dig. (N. Y.) 300. But see Crook v. 
 
 39 
 
 Rinkskopf, 105 N. Y. 476, [2 X. E. 
 Rep. 174. 
 
 5 An assignment is invalid as a con- 
 veyance of a, debtor's estate under t lie 
 insolvency statutes of New ?ori (2 R. 
 S., p. 16), when the preliminary pro- 
 ceedings upon which it is based are 
 void. Rockwell v. McGovern, »'>'.» N. 
 Y. 294, 1 Am. Insolv. Rep. 59. See 
 Ely v. Cooke, 28 N. Y. 365. But com 
 pare Striker v. Mott, 28 X. Y. 90. In 
 such a case the only beneficial interest 
 vested in the assignee is thai pre- 
 scribed by the statute. 
 
 6 Probst v. Welden, !•', Ark. 109 ; 
 Shultz v. Hoagland, 85 N. Y. 164; 
 Waverly Nat. Bank v. i I 
 Barb. (X. Y.) 249 ; White v . Benja 
 min. 3 Misc. (N. Y.)497, 23N. Y. Supp. 
 981, affi'd 150 X. Y. 258, 1 1 X. E. Rep, 
 956; Rothschild v. Salomon, 52 Hun 
 (N. Y.)486, 5 N. V. Supp. 865 . Cour- 
 sey v. Mmton. 132 X. 1 . 556, 30 N E 
 Rep. 231 ; Craft v. Bloom, 59 Miss. 69 
 
 'Talcotl v. Eess,31 Mm, V 5
 
 6lO ASSIGNMENTS HELD VOID. § 345 
 
 intent is a point as to which the authorities differ. 1 An 
 attempt to restore the proceeds of property fraudulently 
 transferred in connection with an assignment will not 
 purge the fraud in the instrument. 2 An assignment 
 which directs a disposition of property different from that 
 prescribed by statute ; 3 or that omits creditors; ' or that 
 is immediately preceded by a gift of a sum of money to 
 the assignor's wife ; 5 or that reserves a sum of money to 
 be used by the assignor in purchasing necessaries for 
 his family, 6 and the transaction is not satisfactorily 
 explained; 7 or that gives power to lease or mortgage ; 8 
 or that directs the assignee to sell the assets and pay the 
 assignor the amount of his exemptions; 9 or that inten- 
 tionally withholds property not exempt ; 10 or that omits 
 property; 11 or that places any surplus indefinitely beyond 
 the reach of creditors; 13 or that provides for the payment 
 of attorney's services to be rendered after the transfer; 13 
 or that retains the assignor at a salary ; 14 or that prefers a 
 fictitious debt ; 15 or that reserves the right to the assignor to 
 
 1 Frank v. Robinson, 96 N. C. 32, 1 8 Darling v. Rogers, 22 Wend. (N. 
 S. E. Rep. 781. Cf. Richardson v. Y.) 483 ; Planck v. Scbermerhorn, 3 
 Stringfellow, 100 Ala. 416, 14 So. Barb. Ch. (N. Y.) 644. 
 
 Rep. 283. ;| King v. Ruble, 54 Ark. 118, 16 8. 
 
 2 Friedburgher v. Jaberg, 20 Abb. W. Rep. 7. 
 
 N. C. (N. Y.) 279. 10 Penzel Grocer Co. v. William, 53 
 
 3 Churchill v. Hill, 59 Ark. 54, 26 Ark. 81, 13 S. W. Rep. 736. 
 
 S. W. Rep. 378. "McMillan v. Knapp, 70 Ga. 171. 
 
 4 Stunt v. Watson, 19 Ore. 251, 24 ''Gregg v. Cleveland, 82 Tex. 1S7, 
 Pac. Rep. 230. 17 S. W. Rep. 777. 
 
 i Chambers v. Smith, 60 Hun (N. 13 Norton v. Matthews, 7 Misc. (N. 
 Y.)24^, 14 N. Y. Supp. 706; Roths- Y.) 569, 28 N. Y. Supp. 265 ; Brain- 
 child v. Salomon. 52 Hun (N. Y.)486, erd v. Dunning. 30 N. V. 211 : Matter 
 5 N. Y. Supp. 865. Contra, Estes v. of Gordon, 49 Hun (N. Y.) 370, 3 N. 
 Gunter, 122 U. S. 450. 7 S. C. Rep. Y. Supp. 589 ; Mattison v. Judd, 59 
 1275. Miss. 99; Winfield Nat, Bk. v. Croco, 
 
 • Montgomery v. Goodbar, 69 Miss. 46 Kan. (i. ,, .). 20 Pac. Rep. 942. 
 
 333, 1:5 So. Rep. 624; Constable v. 14 Stephens v. Regenstein, 89 Ala. 
 
 Hardenbergh, 4 App. Div. (X. Y.) 561, 8 So. Rep. 68. 
 
 L43, 38 N Y. Supp. 694. > Stafford v. Merrill, 62 Hun (N. 1 1 
 
 I av v. Grant, 53 Hun (N. V ill. 147, Hi N. Y. Supp. 467; Bickham v. 
 
 5 N. Y Supp. 910. Lake, 51 Fed. Rep. 892. In Bickham
 
 345 
 
 ASSIGNMENTS HELD VOID. 
 
 'Ml 
 
 make future preferences ; ' or that authorizes the a 
 to compromise with creditors ;'-' or that delays the collection 
 of a debt ; 3 or that provides for payment of part ol the 
 creditors, 4 and the restoration of the surplus back to the 
 assignor; 5 or that permits the grantor to occup) and use 
 the property ; H or that is accompanied by the secreting of 
 assets ; r or is accompanied with the abstracting and hiding 
 of a considerable sum of money on the eve of an assign- 
 ment, 8 these are illustrations of fraudulent acts which by 
 themselves, or in combination, have been deemed sufficient 
 to overturn voluntary transfers for the benefit of creditors. 
 Falsehoods recited in an assignment calculated to deceive 
 
 v. Lake, 51 Fed. Rep. 895, the court 
 says : " I think it must follow that a 
 general assignment like the present, 
 providing for the payment of fictitious 
 or simulated debts, is fraudulent and 
 void for all purposes. The question 
 is, what are simulated and fictitious 
 debts? To be held such, the debt 
 must be fabricated and trumped up, 
 must have no consideration to sup- 
 port it, must be a pretense, and noth- 
 ing more. For the assignment to be 
 rendered void on this ground, the 
 conveyance, debt, or assignee debt 
 must have been inserted by the 
 grantor with a knowledge that it was 
 not a real and valid debt, or that he 
 was so careless and negligent in ascer- 
 taining whether or not it was a ficti- 
 tious debt as to estop him from deny- 
 ing his knowledge of its invalidity, 
 and not an honest mistake." 
 
 1 Boardman v. Halliday, 10 Paige 
 (N. Y.) 223; Averill v. Loucks, 6 
 Barb. (N. Y.)470 ; Kercheis v. Schloss, 
 49 How. Pr. (N. Y.) 284. 
 
 2 McConnell v. Sherwood, 84 N. Y. 
 522 
 
 3 Buell v. Rope, 6 App. Div. (N. Y.) 
 115, 39 N. Y. Supp. 475. 
 
 4 Bickham v. Lake, 51 Fed. Rep. 892. 
 
 5 Sutherland v. Bradner, 116 N. V. 
 410, 22 N. E. Rep. 554. In Knapp v. 
 McGowan, 96 N. Y. 85,thecourl says : 
 " An insolvent, and even a solvent 
 debtor cannot convey all his property 
 to trustees to pay a portion of his 
 creditors, with a provision that the 
 surplus shall be returned to him, 
 leaving his other creditors unprovided 
 for ; because such a conveyance ties 
 up his property in the hands of his 
 trustees, places it beyond the reach of 
 his creditors by the ordinary process 
 of the law and thus hinders and de- 
 lays them, and is, therefore void asto 
 the creditors unprovided for." 
 
 6 Saunders v. Waggoner, 82 Va. 
 316. 
 
 1 Newman v. Clapp, 20 Misc. (N, 
 Y.) 68; Coursey v. Morton, 132 N Y 
 556, 30 N. E. Rep. 231 : Shultzv. Boag- 
 land. 85 N. Y. 464 : Rothschild v. 
 Salomon, 52 Hun (N. Y.) 486, 5 X. 
 Y. Supp. 865. 
 
 «Coursey v. Morton, L32 X. V : >",r,. 
 30 N. E. Rep. 231; Shultz v. Hoag 
 land, 85 N. V. 464 ; Rothschild v. 
 Salomon, 52 Hun (N. Y.) 186, 5 N. V. 
 Supp. 865.
 
 6l2 INSUFFICIENT GROUNDS OF ATTACK. § 345a 
 
 creditors constitute notice to the assignee of the assignor's 
 fraudulent intent. 1 
 
 § 345a. Insufficient grounds of attack. — A cancellation by 
 a surviving partner, by agreement, on the eve of making 
 an assignment, of a claim against his son, who had 
 rendered services to the firm of the reasonable value of 
 the cancelled claim, will not invalidate an assignment; 2 
 nor is the instrument rendered void by bad management 
 of the assignee ; 3 nor by the fact that a debt preceding 
 the assignment was fraudulently contracted ; 4 nor by the 
 fact that the assignor expected to compromise with his 
 creditors; 5 nor, in Texas, by the fact that the schedule 
 embraces a debt that cannot be paid ratably with the 
 claims of other creditors; nor because the insolvent's 
 wife took a small amount of supplies from the assignor's 
 store; 7 nor by the insolvency of the assignee, 8 though 
 certainly such a transfer should be scrutinized ; nor by 
 the failure to comply with a statute directing that the 
 residence, kind and place of business, etc.. of the assignor 
 
 'Douglass Merch. Co. v. Laird, 37 that a debtor assigns without at least 
 
 W. Va. 687, 17 S. E. Rep. 188. some expectation of this character." 
 
 'Cutter v. Hume, 62 Hun(N. Y.) 6 Tracy v. Tuffly, 134 U. S. 225, 10 
 
 622, 17 N. Y. Supp. 255 ; affi'd 138 N. S. C. Rep. 527. 
 
 Y. 630, 33 N. E. Rep. 1084. ' Estes v. Gunter, 122 U. S. 450, 456. 
 
 8 Bradley v. Bischel, 81 Iowa 80, 46 7 S. C. Rep. 1275. The court says that 
 
 N. W. Rep. 755. .Mrs. Gunter " was a clerk in the store 
 
 * South Branch Lumber Co. v. Ott, and took the money from the drawer 
 
 142 U. S. 622, 12 S. C. Rep. 318. in the course of business, and supplies 
 
 ' Moore v. Stege, 93 Ky. 27, 18 S. for Gunter's house were generally 
 W. Rep. 1019. In this case, the court taken from the store. It was quite 
 says : ' ' His evidence shows, however, natural, therefore, that he should take 
 that he was then conducting his busi- needed supplies before the assign- 
 in sss honestly, and the most that can ment was executed, There is no evi- 
 be said, when all the testimony is dence that the supplies were excessive 
 considered, \h, that when the assign- or unreasonable, but even if they 
 ment was made he had an expectation, were, that fact would constitute no 
 ;i hope <>f compromising with his ground for Betting the subsequent 
 creditors. This does not vitiate the assignment aside." 
 
 pnment. If so, <>m. would rarely 8 Cohn v. Ward, 32 W. Va. 40, 9S. 
 
 be upheld. It is, probably, seldom E. Rep. 41.
 
 §345 b >34 6 DEFEATED CREDITOR ENTITLED TO DIVIDEND. I 
 
 shall be stated; 1 nor by omitting preferred claims of 
 laborers; 2 nor by a mistake in the inventory of the prop- 
 erty, or in the assignment with respect to the description 
 of the debt, or its amount or form, in the absence of 
 actual fraud ; 3 nor because a preference is made in order 
 to carry out an antecedent promise to prefer ; ' nor by 
 withdrawing a small sum of money to apply to family 
 wants; 5 nor by mistakes as to individual and copartner- 
 ship debts ; G nor by reserving exempt property. 7 
 
 § 345b. Defeated creditor entitled to dividend. — A cred- 
 itor who fails to overturn an assignment is not precluded 
 from sharing in a distribution of the assigned estate. 8 
 And a judgment-creditor will not forfeit or lose his honest 
 judgment against the debtor because he may have advised 
 the latter to cheat another creditor. 9 
 
 § 346. Foreign assigments. — The rule generally obtains 
 that the statute laws of a particular State regulating 
 assignments for the benefit of creditors, do not apply to 
 
 1 Dutchess County Mutual Ins. Co., head Banking Co. v. Whitaker, 110 
 etc. v. Van Wagonen, 132 N. Y. 398, N. C. 345, 14 S. E. Rep. 920. 
 
 30 N. E. Rep. 971. 8 Mills v. Parkhurst, 126 N. Y. 89, 
 
 2 Richardson v. Thurber, 104 N. Y. 26 N. E. Rep. 1041. 
 
 606, 11 N. E. Rep. 133. 9 Fidler v. John, 178 Pa. St. 117, 35 
 
 3 Roberts v. Buckley, 145 N. Y. 223, Atl. Rep. 976, where the court Bays : 
 39 N. E. Rep. 966. SeeGoodbar Shoe " If the owner of the honest judgment 
 Co. v. Montgomery, 73 Miss. 73, 19 had a valid lien, which is not and 
 So. Rep. 196. cannot be disputed, by what con- 
 
 4 Smith v. Munroe, 1 App. Div. (N. ceivable process of reasoning did he 
 Y.) 77, 37 N. Y. Supp. 62; National lose it? If he had il before he advised 
 Park Bank v. Whitmore, 104 N. Y. the fraudulent conveyance how did 
 304, 10 N. E. Rep. 524. See § 394. he lose it because of that ad\ ice? H 
 
 5 Vietor v. Nichols, 13 St. Rep. (N. it was a good judgment before the 
 Y.)461, affi'd 114 N. Y. 617, 20 N. E. advice was given, because it was 
 Rep. 880 ; Birdsall W. & P. Mfg. Co. given for a valuable consideration, it 
 v. Schwarz, 3 App. Div. (N. Y.) 301, was a good judgment thereafter be- 
 38 N. Y. Supp. 368. cause it was still a judgment which 
 
 6 Gorham v. Innis, 115 N. Y. 87, 21 was given for a valuable consideration. 
 N. E. Rep. 722. Therefore, it was still a good judg- 
 
 7 Haynes v. Hoffman, 46 S. C. 157, ment. The fact of good considers 
 24 S. E. Rep. 103; Adler v. Cloud, 42 tion was precisely the Bame ati 
 
 S. C. 272, 20 S. E. Rep. 393 ; More- before the advice was given."
 
 614 
 
 FOREIGN ASSIGNMENTS. 
 
 §346 
 
 foreign assignments ; * such transfers, if valid by the law 
 of the place where made, are valid everywhere, 2 and will 
 protect the property from attachment, 3 except perhaps as 
 regards creditors who are residents of the particular State 
 in which it is sought to enforce the provisions of the 
 instrument. As the foreign assignment is allowed 
 to operate partially as a matter of comity, the court some- 
 times refuse to enforce it to the prejudice of their own 
 citizens, 4 and seize upon the absence of local require- 
 ments as a means of accomplishing that result. 5 In New 
 York State no discrimination is permitted between resi- 
 dents of that State and of other States. 6 Manifestly an 
 assignment will not take effect to pass title to personal 
 property situated in another State, in express contraven- 
 tion of the statute law of that State. 7 The distinction 
 should not be overlooked between assignments by act of 
 the party and those which are involuntary, 8 or by oper- 
 
 1 Ockeririan v. Cross, 54 N. Y. 29 ; 
 Chafee v. Fourth Nat. Bank of N. Y., 
 71 Me. 524; Bentley v. Whitteraore, 
 19 N. J. Eq. 4G2. 
 
 'See Benevolent Order, etc. v. 
 Sanders, 28 W. N. C. (Pa.) 321 ; 
 Woodward v. Brooks, 128 111. 222, 30 
 N. E. Rep. 685. 
 
 3 Ockerman v. Cross, 54 N. Y. 29 ; 
 Bholen v. Cleveland, 5 Mason 174 ; 
 Barth v. Backus, 140 N. Y. 234, 35 N. 
 E. Rep. 425. 
 
 * Chafee v. Fourth Nat. Bank, 71 
 Me. 534. See Matter of Waite, 99 N. 
 Y. 433, 3 N. E. Rep. 440. Compare 
 Train v. Kendall, 137 Mass. 366. 
 
 6 See Faulkner v. Hyman, 142 
 Mass. 53, GN. E. Rep. 846; Bentley 
 v. Whittemore, 19 N. J. Eq. 462; 
 Bacon v. Home, 123 Pa. St. 452, 16 
 Atl. Rep. 794; St. -el v. Goodwin, 113 
 Pa. St. 288, 6 \tl. Rep. 49. 
 
 Bibernia Nat. Bank v. Laconibe, 
 84 N. Y. 367 ; Vanderpoel v. Gorman, 
 
 140 N. Y. 563, 573, 574, 35 N. E. Rep. 
 932. See Paine v. Lester, 44 Conn. 
 196 ; Hanford v. Paine, 32 Vt. 442. 
 
 1 Warner v. Jaffray, 96 N. Y. 248. 
 In Hallgarten v. Oldham, 135 Mass. 
 1, 7, the court says : " When a sale, 
 mortgage, or pledge of goods within 
 the jurisdiction of a certain State is 
 made elsewhere, it is not only com- 
 petent, but reasonable, for the State 
 which has the goods within its power 
 to require them to be dealt with in the 
 same way as would be necessary in a 
 domestic transaction, in order to pass 
 a title which it will recognize as 
 against domestic creditors of the 
 vendor or pledgor." 
 
 8 Schroder v. Tompkins, 58 Fed. 
 Rep. 675; Smith's Appeal, 104 Pa. 
 St. 381 ; Weider v. Maddox, 66 Tex. 
 372, 1 S. W. Rep. 168; Walters v. 
 Whitlock, 9 Fla. 86 ; Barth v. Backus, 
 140 N. Y. 235, 35 N. E. Rep, 425.
 
 § 346a 
 
 ASSIGNMENTS BY CORPORA! I 
 
 
 ation of law. The latter class of conveyances arc gen- 
 erally founded upon statutory provisions, and have no 
 extra-territorial force. 1 A conveyance of personal prop- 
 erty, valid according to the lex loci contractus, is ordi- 
 narily binding and effectual to transfer title when 
 located. 2 This, however, is a line of inquiry foreign to 
 our subject. 
 
 § 346a. Assignments by corporations. — Where charter 
 restrictions or statutory inhibitions do not exist, a corpor- 
 ation may make a general assignment. 3 Such a transfer 
 was formerly not possible to carry out under the statute 
 in New York, 4 but the rule in that State has been 
 changed 5 In Vanderpoel v. Gorman,' 1 Peckham, J., said: 
 " There can be no doubt that an insolvent corporation 
 could at common law make a general assignment in trust 
 to an assignee for the benefit of its creditors." 7 
 
 1 See Hutcheson v. Peshine, 16 N. 
 J. Eq. 167 ; Kelly v. Crapo, 45 N. Y. 
 86 ; reversed, Crapo v. Kelly, 16 
 Wall. 610. See § 294. 
 
 - Schroder v. Tompkins, 58 Fed. 
 Rep. 675 ; Barnett v. Kinney, 147 U. 
 S. 476, 13 S. C. Rep. 403; Catlin v. 
 Wilcox Silver Plate Co., 123 Ind. 477, 
 24 N. E. Rep. 250 ; Barth v. Backus, 
 140 N. Y. 234, 35 N. E. Rep. 425. 
 
 3 Albany & R. Iron & S. Co. v. 
 Southern Agricultural Works. 76 Ga. 
 135 ; De Ruyter v. St. Peter's Church, 
 3 Barb. Ch. (N. Y.) 124, affi'd 3 N. Y. 
 238 ; Haxtun v. Bishop, 3 Wend. (N. 
 Y.) 13 ; Bowery Bank Case, 5 Abb. 
 Pr. (N. Y.) 415; Hill v. Reed, 16 
 Barb. (N. Y.)280 ; DeCamp v. Alward, 
 52 Ind. 473; Nelson v. Edwards, 40 
 Barb. (N. Y.) 279; Union Bank of 
 Tenn. v. Ellicott, 6 Gill & J. (Md.) 
 363 ; Vanderpoel v. Gorman, 140 N. 
 Y. 568, 35 N. E. Rep. 932 ; Home 
 Bank v. Brewster & Co., 17 Misc. (N. 
 Y.) 442, 41 N. Y. Supp. 203 ; Savings 
 Bank of New Haven v. Bates, 8 Conn. 
 
 505 ; Coats v. Donnell. 94 N. V. 178; 
 Chew v. Ellingwood, 86 Mo. 27:!; 
 Lenox v. Roberts, 2 Wheat. 37:'» ; 
 Warner v. Mower, 11 Vt. 385 ; Flint 
 v. Clinton Co.. 12 \. II 431 ; Ex 
 parte Conway, 4 Ark. :i04 ; Catlin v. 
 Eagle Bank, 6 Conn. 233 : Ardesco 
 Oil Co. v. North Am. Oil & M. I 
 Pa. St. 375. A transfer by officers of 
 an insolvent corporation conveying 
 all its property to another corporation 
 without providing for debts and 
 dividing the bonds received in pay- 
 ment among the stockholders and 
 officers is fraudulent as to the vendor. 
 Fort Payne Bank v. Ala. Sanitarium, 
 103 Ala. 358. 15 So. Rep. 618. 
 
 4 Chap. 564, Laws of 1890, § 48, 
 
 5 Vanderpoel v. Gorman. 140 N. Y 
 568, 35 N. E. Rep. 932 ; Borne Bank v. 
 Brewster & Co , 17 Misc. (N. Y.) I1J 
 41 N. Y. Supp. 203. 
 
 6 140 N. Y. 563, 568, 35 N. E. Rep. 
 932. 
 
 7 Franzen v. Zimmer, 90 Hun (N. 
 Y.) 103, 35 N. Y. Supp. 612.
 
 6l6 CONTINGENT CREDITORS. § 346b 
 
 Where assignments by corporations are allowed they 
 are subject to attack " upon substantially the same 
 grounds as in the cases of similar transfers by individ- 
 uals." l Hence a conveyance by an insolvent corporation 
 to one of its directors, who assumed the debts and agreed 
 to pay them within eighteen months is voidable. 2 
 
 A corporation, like an insolvent person, may permit 
 its creditors to take hostile proceedings and allow those 
 to obtain preferences who are the most vigilant. 3 
 
 But the ramifications of corporation law cannot be 
 followed in detail. 
 
 § 346b. Contingent creditors. — The fact that the assignor 
 has incurred obligations that are of a contingent nature 
 at the date of the assignment will not preclude provision 
 being made for the protection of such contingent creditors 
 out of the assigned estate. 4 
 
 1 In Cole v. Millerton Iron Co. 133 drews, 145 N. Y. 443, 40 N. E. Rep. 
 N. Y. 164, 30 N. E. Rep. 847, it was 214. 
 
 held that a transfer by a corporation 4 Brainerd v. Dunning, 30 N. Y. 
 
 of all its assets, which lias the effect 211 ; Griffin v. Marquardt, 21 N. Y. 
 
 of terminating the regular business of 121 ; Keteltas v. Wilson, 36 Barb. (N. 
 
 the corporation is illegal as against Y.) 298; Cunningham v. Freeborn, 
 
 creditors. 11 Wend. (N. Y.) 241 ; Webb v. 
 
 2 Berney Nat. Bank v. Guyon, Thomas, 49 St. Rep. (N. Y.) 462, 
 (Ala. 1896) 20 So. Rep. 520. 21 N. Y. Supp. 69 ; Read v. Worth- 
 s' Varnum v. Hart, 119 N. Y. 105, ington, 9 Bosw. (N. Y.) 628. 
 
 23 N. E. Rep. 183 ; French v. An-
 
 CHAPTER XXII. 
 
 FRAUDULENT CHATTEL MORTGAGES. 
 
 §347. 
 348. 
 349. 
 350. 
 351. 
 352. 
 353. 
 354. 
 
 355. 
 
 Chattel Mortgages. 
 
 y Rule in Robinson v. Elliott. 
 
 Proof extrinsic to the instrument. 
 Comments in the cases. 
 
 j- Opposing rule and cases. 
 
 Discussion of the principle in- 
 volved. 
 
 Authorizing sales for mort- 
 gagee's benefit. 
 
 § 356. Sales upon crc lit. 
 356a. Secret trust. 
 356t». Change of possession. 
 
 357. Possession — Independent valid 
 
 transactions. 
 
 358. Right of revocation — R« 
 
 tions. 
 
 359. Rule as t<> consumable prop- 
 
 erty. 
 359m. Distinct claims. 
 
 § 347. Chattel mortgages.— Questions affecting the valid- 
 ity of chattel mortgages as regards creditors are so largely 
 dependent upon and regulated by local statutory pro- 
 visions, that the general principles governing the subject 
 can be discussed with but little satisfaction. These 
 instruments are in some respects a higher security than 
 a mortgage on land. Such mortgages are, as a general 
 rule, valid between the parties, 1 even though not 
 
 1 Stewart v. Piatt, 101 U. S. 731 ; 
 Hackett v. Manlove, 14 Cal. 85. See 
 Lane v. Lutz, 1 Keys (N. Y.) 213 ; 
 Smith v. Acker, 23 Wend. (N. Y.) 653. 
 See Chap. XXVI. In Stewart v. 
 Piatt, 101 U. S. 739, the court said: 
 "Although the chattel mortgages, by 
 reason of the failure to file them in 
 the proper place, were void as against 
 judgment-creditors, they were valid 
 and effective as between the mort- 
 gagors and the mortgagee. Lane v. 
 Lutz, 1 Keys (N. Y.) 213; Wescott 
 v. Gunn, 4 Duer (N. Y.) 107 ; Smith v. 
 Acker, 23 Wend. (N. Y.) 653. Sup- 
 pose the mortgagors had not been 
 
 adjudged bankrupts; and there bad 
 been no creditors, subsequent pur- 
 chasers, or mortgagees in good faith 
 to complain, as they alone might, of 
 the failure to file the mortga 
 the towns where the mortf 
 respectively resided, it cannot be 
 doubted that Stewart, in thai event, 
 could have enforced a lien upon the 
 mortgaged property in satisfaction of 
 his claim for rent. The assignee took 
 the property subject to such equities, 
 liens, or incumbrances as would have 
 affected it, had no adjudication in 
 bankruptcy been made. While th< 
 rights of creditors whose executions
 
 6l8 CHATTEL MORTGAGES. § 347 
 
 recorded ; l and recording the instrument is made by 
 statute in some States a substitute for actual change of 
 possession, and repels the imputation of fraud which 
 would arise from the retention of possession by the 
 vendor. 2 The creditor must keep in mind in taking a 
 chattel mortofaee to secure his debt that he cannot use his 
 claim for any other purpose than his own indemnity. 3 
 Taking a mortgage in excess of the debt, 4 or upon all the 
 property of the debtor of a value greatly in excess of the 
 debt; 5 making an unfair sacrifice at the sale so as to 
 prevent a surplus; 6 taking the mortgage, among other 
 things, to hinder other creditors; 7 or reciting an over 
 statement of the consideration ; 8 or obtaining the instru- 
 ment under duress 9 or altering a mortgage ; 10 are illustra- 
 tions of acts and combinations of facts which will overturn 
 such a security. Many questions concerning the validity of 
 these instruments are to be found in the reports, only the 
 more prominent of which will be noticed. Naturally, from 
 
 preceded the bankruptcy were prop- will not be considered a badge of 
 
 erly adjudged to be superior to any fraud. Stevens v. Breen, 75 Wis. 
 
 which passed to the assignee by 595, 44 N. W. Rep. 645. 
 
 operation of law, the balance of the 3 Hughes v. Epling, 93 Va. 424 ; 25 
 
 fund, after satisfying those execu- S. E. Rep. 105. See State v. Busch, 
 
 tions, belonged to the mortgagee, and 38 Mo. App. 440. 
 
 not to the assignee for the purposes of 4 Patrick v. Riggs, 105 Mich. 610, 
 
 his trust. The latter representing 63 N. W. Rep. 532. 
 
 general creditors, cannot dispute such 5 Thompson v. Richardson Drug Co., 
 
 claim, since, had there been no ad- 33 Neb. 714, 50 N. W. Rep. 948 ; 
 
 judication, it could not have been dis- Brown v. Work, 30 Neb. 800, 47 N. 
 
 puted by the mortgagors." SeeHau- W. Rep. 192. 
 
 selt v. Harrison, 105 U. S. 406. 6 Collingsworth v. Bell, 56 Kan. 342, 
 
 1 Stewart v. Piatt, 101 U. S. 731 ; 43 Pac. Rep. 252. 
 
 Lane v. Lutz, 1 Keyes (N. Y.) 213 ; 7 Weber v. Mick, 131 111. 526, 23 N. 
 
 Pyeatt v. Powell, 10 U. S. App. 200, E. Rep. 646 ; McCreary v. Skinner, 
 
 51 Fed. Rep. 551, 2 C. C. A. 367. 83 Iowa 366, 49 N. W. Rep. 986. 
 
 '' See Bullock v. Williams, 16 Pick. « Kalk v. Fielding, 50 Wis. 339, 7 
 
 (Mass.) 33: Feurt v. Rowell, 62 Mo. N. W. Rep. 296. 
 
 524 ; Hughes v. Cory, 20 Iowa 403, » Lightfoot v. Wallis, 12 Bush (Ky.) 
 
 and cases cited ; Spraightsv. Hawley, 498. See Bane v. Detrick, 52111. 19. 
 
 39 N. Y. 441. A reasonable delay by 10 Bowser v. Cole, 74 Tex. 222, 11 S. 
 
 the mortgagee in taking possession W. Rep. 1131.
 
 §348 
 
 ROBINSON V. ELLIOTT. 
 
 619 
 
 what precedes, a mere creditor-at-large cannot assail a 
 chattel mortgage. 1 
 
 §348. Rule in Robinson v.Elliott. — The Supreme Court 
 of the United States, in Robinson v. Elliott, 2 committed 
 itself to the doctrine that an instrument which provided 
 for the retention of the possession of the mortgaged 
 personalty by the mortgagor, accompanied with the power 
 to dispose of it for his own benefit in the usual course of 
 trade, was inconsistent with the idea of a security, or the 
 nature and character of a. mortgage, and of itself furnished 
 a pretty effectual shield to a dishonest debtor, and con- 
 sequently should be regarded as voidable as to creditoi 
 
 1 Button v. Rathbone, 126 N. Y. 
 190, 27 N. E. Rep. 266; Jones v. 
 Graham, 77 N. Y. 628. 
 
 2 22 Wall. 513. 
 
 3 See Worseley v. Dernattos, 1 Burr. 
 467, per Lord Mansfield ; Edwards v. 
 Harben, 2 T. R. 587 ; Bannon v. Bow- 
 ler, 34 Minn. 418, 26 N. W. Rep. 237 ; 
 Paget v. Perchard, 1 Esp. 205, per 
 Lord Kenyon ; Lang v. Lee, 3 Rand. 
 (Va.) 410 ; Addington v. Etheridge, 
 12 Gratt. (Va.) 436; McLachlan v. 
 Wright, 3 Wend. (N. Y.) 348 ; Edgell 
 v. Hart, 9 N. Y. 213 ; Brackett v. 
 Harvey, 91 N. Y. 214 ; Potts v. Hart, 
 99 N. Y. 168, 1 N. E. Rep. 605; 
 American Oak Leather Co. v. Fargo, 
 77 Fed. Rep. 671 ; Hangen v. Hache- 
 meister, 114 N. Y. 566, 21 N. E. 
 Rep. 1046 ; Mandeville v. Avery, 
 124 N. Y. 376, 26 N. E. Rep. 951 ; 
 Sparks v. Brown, 46 Mo. App. 530 ; 
 Sauer v. Behr, 49 Mo. App. 86; 
 Russell v. Rutherford, 58 Mo. App. 
 550 ; Cook v. Bennet, 60 Hun (N. Y.) 
 8, 14 N. Y. Supp. 683 : Gallagher v. 
 Rosenfield, 47 Minn. 507, 50 N. W. 
 Rep. 696 ; Randall v. Carman, 89 Hun 
 (N. Y.) 86, 35 N. Y. Supp. 53 ; Sberwin 
 v. Gaghagen, 39 Neb. 238, 57 N.W . Rep. 
 1005 ; State v. Busch, 38 Mo. App. 442; 
 
 Martin-Perrin Merc. Co. v. Perkins, <i:; 
 Mo. App. 310 ; Pabst Brewing Co. v. 
 Butchart (Minn.) (i!) X. W. Rep. 
 809; Chapman v. Sargent, 6 Col A.pp. 
 438, 40 Pac. Rep. 849; Coburn v. 
 Pickering, 3 N. H. 415 ; Bank of 
 Leavenworth v. Hunt, 1 1 Wal. 391 ; 
 Coolidge v. Melvin, 42 X. II 520; 
 Collins v. Myers, 16 Ohio 517 ; ( !hop- 
 hard v. Bayard, 4 Minn. .V.;! ; Eorton 
 v. Williams, 21 Minn. 187 ; Bishop v. 
 Warner, 19 Conn. 400; Place v. Lang- 
 worthy, 13 Wis. 629; Blakeslee \. 
 Rossman, 43 Wis. 116 : Smith v. Ely, 
 10 N. B. R. 553 ; In re Cantrell, 6 
 Ben. 482 ; In re Kahley, 'J Biss. 388 ; 
 Southard v. Benner, 72 X. Y. I.' I Ex 
 parte Games, L. R. 12 Ch. 1>. 314 
 Cheatham v. Hawkins, 80 N. ('. 104; 
 Tennessee Nat. Bank v. Ebbert, '•» 
 Heisk. (Tenn.) 154; Joseph v. Levi, 
 58 Miss. 815; Harman v. Hoskins, 56 
 Miss. 142; Dunning v. Mead, '.til III. 
 379; Goodheart v. Johnson, 88 111. 58 : 
 Davenport v. Foulke. 0* I ml. 882 : 
 Barnet v. Fergus, 51111.352; Davis 
 v. Ransom, 18 111. 396; Simmons v. 
 Jenkins, 76 111. 479 ; Mbbley v. Lette, 
 61Ind. 11 : Garden v. Bodwing, 9 W. 
 Va. 122 : City Nat. Bank v. Goodrich, 
 3 Col. 139; Sparks v. Mack, 31 Ark.
 
 620 
 
 ROBINSON V. ELLIOTT. 
 
 348 
 
 Davis, J., said: "In truth, the mortgage, if it can be so 
 called, is but an expression of confidence, for there can be 
 no real security where there is no certain lien. What- 
 ever may have been the motive which actuated the parties 
 to this instrument, it is manifest that the necessary result 
 of what they did do was to allow the mortgagors, under 
 cover of the mortgage, to sell the goods as their own, and 
 appropriate the proceeds to their own purposes ; and this, 
 too, for an indefinite length of time." : The same court, 
 following a State decision, was, later, inclined to uphold a 
 mortgage of this kind, where the State from which the ap- 
 peal was taken tolerated such an arrangement. 2 That the 
 courts should look with any favor upon such instruments 
 seems extraordinary, but the principle of Robinson v. 
 Elliott is certainly not gaining ground. It must be remem- 
 
 6G6 ; Orton v. Orton, 7 Ore. 378 ; 
 Peiser v. Peticolas, 50 Tex. 638 ; Scott 
 v. Alford, 53 Tex. 82 ; Weber v; Arm- 
 strong, 70 Mo. 217 ; Tallon v. Ellison, 
 3 Neb. 63 ; McCrasly v. Hasslock, 4 
 Baxt. (Tenn.) 1; Catlin v. Currier, 1 
 Sawyer, 7 ; Orman v. English & S. 
 Merc. Inv. Trust, 9 C. C. A. 356, 61 
 Fed. Rep. 38 ; Pierce v. Wagner 
 (Minn.) 66 N. W. Rep. 977 ; Bank v. 
 Brier, 95 Tenn. 331, 32 S. W. Rep. 
 205 ; American Oak Leather Co. v. 
 Wyeth Hardware & Mfg. Co.. 57 Mo. 
 App. 297; Paxton v. Smith, 41 Neb. 56, 
 59 N. W. Rep. 690; Eckman v. 
 Munnerlyn, 32 Fla. 367, 13 So. Rep. 
 922 ; First Nat. Bank v. Wittich, 33 
 Fla. 681, 15 So. Rep. 552 ; Rock Island 
 Nat. Bank v. Powers, 134 Mo. 444, 34 
 S. W. Rep. 869, 35 Id. 1132. See " An 
 American Phase of Twyne's Case,'" 
 by James O. Pierce, Esq., 2 Southern 
 L. Rev. (X. S.) 731; "Fraudulent 
 Mortgages of Merchandise," by Leon- 
 ard A. Jones, Esq., 5 Southern L. 
 Rev. (N. S.) 617; " A Reply," by Mr. 
 Pierce, Southern L. Rev. (N. S.) 
 
 96; " Frauds in Chattel Mortgages," 
 by Mr. Jones, 7 Southern L. Rev. 
 (N. S.) 95 ; Reviewed by Ed. J. Max- 
 well. Esq., 7 Southern L. Rev. (N. 
 S.) 205. This discussion relates 
 mainly to Robinson v. Elliott, 22 
 Wall. 513. The controversy gave 
 birth to a work entitled " Fraudulent 
 Mortgages of Merchandise, a Com- 
 mentary on the American Phases of 
 Twyne's Case, by James O. Pierce," 
 F. H. Thomas & Co., 1884. The posi- 
 tions taken by Mr. Pierce in the Law 
 Review, in support of Robinson v. 
 Elliott, are re-stated in this volume 
 with commendable clearness and 
 force, and the different authorities 
 in State and Federal tribunals bearing 
 upon the question are collated and 
 discussed down to that date. 
 
 1 Robinson v. Elliott, 22 Wall. 525. 
 See Means v. Dowd, 128 U. S. 284, 9 
 S. C. Rep. 65 ; Etheridge v. Sperry, 
 139 U. S. 266, 11 S. C. Rep. 565. 
 
 2 Etheridge v. Sperry, 139 U. S. 
 266, 11 S. C. Rep. 565.
 
 § 349 ROBINSON V. ELLIOTT. 
 
 bered that, in Twyne's Case, where the transfer was 
 avoided, one of the objections urged against the tran 
 tion was that the debtor used the goods as his own. 1 Mr. 
 Pierce observes: "A mortgage or conveyance of this 
 kind presents a false appearance, is only a pretence 
 as a mortgage, is calculated to deceive, cannot fail 
 to deceive if it be operative, furnishes unusual facili- 
 ties for fraud, reserves benefits to the grantor, and 
 prejudices other creditors. When it thus appears that 
 the transaction is, in its result, so fraudulent, and 
 injurious to creditors, that few transactions could be more 
 so, even where an intent to defraud exists so as to bring 
 them within the statute of 13 Eliz., the courts are as 
 ready to adjudge the transaction fraudulent as they would 
 be if a fraudulent intent appeared."" 
 
 § 349. _ In Edgell v. Hart, 3 the license to sell was 
 inferred from a written schedule attached to the instru- 
 ment. Chief-Justice Denio held, with the concurrence of 
 a majority of the court, that " the existence of such a 
 provision out of the mortgage or in it, would invalidate 
 it as matter of law, and that where the facts are undis- 
 puted this court should so declare." 4 " Such an agree- 
 ment," said Finch, J., " opens the door to fraud, and 
 permits the mortgagor to use the property for his own 
 benefit, utilizing the mortgage as a shield against other 
 creditors." 5 The debtor, in the language of Kent, 
 ''sports with the property as his own." 6 A debtor can- 
 
 1 See § 22. 4 Compare Gardiner v. McEwen, l'.i 
 
 5 Pierce on Fraudulent Mortgages N. Y. 123; Mittnacht v. Kelly, 3 
 
 of Merchandise, § 122. Compare Keyes (N. Y.) 407 ; Russell v. Winne, 
 
 Birmingham Dry Goods Co. v. Roden, 37 N. Y. 591. 
 
 110 Ala. 511 ; s. C, sub nom. Binning- B Brackett v. Harvey, 91 N. Y. 228, 
 
 ham Dry Goods Co. v. Kelso, 18 So. 224. 
 
 Rep. 135 ; Lukins v. Aird, 6 Wall. 78. 6 Riggs v. Murray, 2 Johns. Ch. (N. 
 
 3 9 N. Y. 213. See Hangen v. Y.) 565. 
 
 Hachemeister, 114 N. Y. 566, 21 N. E. 
 
 Rep. 1046.
 
 622 ROBINSON V. ELLIOTT. § 349 
 
 not as against creditors be allowed to make an apparently 
 valid transfer of property so that it shall continue a source 
 of profit to him. 1 In Mittnacht v. Kelly, 3 Parker, J., 
 observed: "The mortgaging the whole stock in trade, 
 .... with the increase and decrease thereof, and the pro- 
 viding for the continued possession of the mortgagor, can 
 have no other meaning than that the mortgagee should 
 all the time retain a lien on the whole stock by way of 
 mortgage, the mortgagor making purchases from time to 
 time, and selling off in the ordinary manner, the intent 
 being not to create an absolute lien upon any property, 
 but a fluctuating one, which should open to release that 
 which should be sold and take in what should be newly 
 purchased. This is just such an arrangement as was held 
 in Edcrell v. Hart 3 to render the mort^aore void. The 
 case cannot be distinguished from that, and the law as 
 pronounced in that case, must be held applicable to this." 
 In Griswold v. Sheldon, 4 Bronson, C. J., says: "There 
 would be no hope of maintaining honesty and fair dealing 
 if the courts should allow a morto-a^ee or vendee to sue- 
 ceed in a claim to personal property against creditors and 
 purchasers, after he had not only left the property in the 
 possession of the debtor, but had allowed him to deal 
 with and dispose of it as his own." "To attempt," says 
 Mr. Pierce, 5 "to fasten a valid and certain lien upon 
 goods which may at any moment, at the will of the 
 debtor, fly out from under the lien, is to attempt a legal 
 and moral impossibility." It is a sham, a nullity — a 
 mere shadow of a mortgage, only calculated to ward off 
 
 1 Birmingham Dry Goods Co. v. 53 ; Mandeville v. Avery, 124 N. Y. 
 
 Roden, lin Ala. 511; s.c.submon. Bir- 376, 26 N. E. Rep. 951; Barton v. 
 
 mingham Dry Goods Co. v. Kelso, 18 Kitlin^ton, 128 Mo. 164, 30 S. W. Rep. 
 
 So. Rep. 135 ; Lukins v. Ainl, Wall. 514. 
 
 7^ *4 N. Y. 590. 
 
 • :; Keyea (N. V . 1 407. 5 Pierce on Fraudulent Mortgages 
 
 9 N. Y. 213; Randall v. Carman, of Merchandise, § 125. 
 89 Hun (N. Y.) 86, 35 N. Y. Supp.
 
 § 35° EXTRINSIC PROOF. 
 
 other creditors — a conveyance in trust for the benefit of 
 the person making it, and therefore void as against 
 creditors. 1 
 
 §350. Proof extrinsic to the instrument. — The rule, as we 
 have seen, is the same, whether the agreement is re< ited 
 in the instrument or is extrinsic to it.~ Thus Allen, f. 
 remarked : u Whether the agreement is in or out of the 
 mortgage, whether verbal or in writing, can make no dif. 
 ference in principle. Its effect as characterizing the trans- 
 action would be the same. The difference in the modesof 
 proving the agreement cannot take the sting out of the fact 
 and render it harmless. If it is satisfactorily established, 
 the result upon the security must be the same." : When 
 not embodied in the instrument the agreement to sell must 
 be proved. The mere expectation of one party or the 
 other that this right is to be given is not enough ; there 
 must be a conscious assent of both. 4 In Potts v. Hart.' 
 Earl, J., said : <; A mortgage thus given is fraudulent and 
 void as to creditors because 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 hin- 
 der and delay his other creditors. It matters not whether 
 the agreement that the mortgagor may continue to 
 deal in the property for his own benefit is contained in 
 the mortgage or exists in parol outside of it ; and where 
 the agreement exists in parol, it matters not whether it 
 
 1 Catlin v. Currier, 1 Sawyer 12 ; 623; Bo wen v. Clark, 1 Bisa 128; In 
 Orman v. English & S. Merc. Inv. re Kahley, 2 Bias. 383 ; ZnreCantrell 
 Trust, 9 C. C. A. 356, 61 Fed. Rep. 6 Ben. 482; Smith v. Ely, 10 X. B R. 
 38. A provision requiring the mort- 553 ; Re Kirkbride, 5 Dill. 116 ; < atlin 
 gagor in possession to replenish the v. Currier, 5 Fed. < 'as. 300, 1 Saw- 
 stock will not render such mortgage yer 7. 
 
 valid. Greenebaum v. Wheeler, 90 'Southard v. Benner, 72 N. 5 
 
 111. 296 ; Gallagher v. Rosenfield, 47 S. P. Russell v. Winne, 37 N. 5 
 
 Minn. 507. 50 N. W. Rep. 696. ' Brackett v. Harvey, !U N. Y 224. 
 
 - Edgell v. Hart, 9 N. Y. 213; Mc- 5 99 N. Y. 172. 
 Lean v. Lafayette Bank, 3 McLean
 
 624 COMMENTS IN THE CASES. §351 
 
 is valid, so that it can be enforced between the parties 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 characterizes 
 it. It is always open to creditors to assail, by parol evi- 
 dence, a mortgage or a bill of sale of property as fraudu- 
 lent and void as to them. While between the parties 
 the written contract may be valid, and the outside parol 
 agreement may not be shown or enforced, yet it may be 
 shown by creditors for the purpose of proving the fraudu- 
 lent intent which accompanied and characterized the giv- 
 ing of the written instrument. It is usually difficult to 
 prove by parol an agreement in terms that the mortgagor 
 may continue to deal in the property for his own benefit. 
 Parties concocting a fraudulent mortgage would not be 
 apt to put the transaction in that unequivocal form. But 
 all the facts and circumstances surrounding the giving of 
 the mortgage, and the subsequent dealing in the property 
 with the knowledge and assent of the mortgagee, may be 
 shown, and they may be sufficient to justify the court or 
 jury in inferring the agreement ; and so the parol agree- 
 ment was inferred in all the cases which have come under 
 our observation." The intent to defraud and the power 
 of sale must be found to have existed at the time the 
 mortgage was made, and the subsequent conduct of the 
 mortgagor is relevant only in so far as it shows the exist 
 ence of such intent ab initio} 
 
 § 351. Comments in the cases. — Chief-Justice Parker, in 
 speaking of these shifting liens, observes that " if this 
 doctrine were admitted, a mortgage of personal property 
 would be like a kaleidoscope, in that the forms repre- 
 sented would change at every turn ; but, unlike that 
 instrument, in that the materials would not remain the 
 
 1 Filebeck \. Bean, 45 .Minn. 307,47 :;i tfeb. 44:'., 51 X. W. Rep. 972 ; State 
 X. W. Rep. 969 ; Whitney v. Levon, v. Roever, 55 Mo. App. 448.
 
 § 35 2 OPPOSING Rl II-. \\h . \-i 
 
 same." 1 The objection may be re-stated, to the efl 
 that the mortgagor may dispose of the property, defeat 
 the mortgage, and put the money in his own pocket; but 
 if he refuses to pay a debt, and creditors seize the prop- 
 erty in execution against his will, the mortgagt in 
 and restores it to the debtor. 2 Again, it is said tliat 
 there is no specific lien, but "a floating mortgage, which 
 attaches, swells, and contracts, as the stock in tra 
 changes, increases, and diminishes; or may wholly expire 
 by entire sale and disposition, at the will of the mort- 
 gagor." 3 Such stipulations are not only inconsistent 
 with the idea of a mortgage, but tend inevitably to give 
 a fraudulent advantage to the debtor over his other 
 creditors. 4 
 
 § 352. Opposing rule and cases. -- The rule embodied in 
 Robinson v. Elliot 5 has, however, been a subject of 
 much discussion and dissension. It seems to be conceded 
 in the great mass of the cases, that an agreement for the 
 retention of possession, with power of disposition by the 
 mortgagor, may constitute evidence of fraud, proper to 
 be considered by the jury or the court as a fact in con- 
 nection with all the circumstances arising in each particu- 
 lar case. The contention against the rule in Robinson 
 v. Elliott is that the agreement does not render the 
 instrument vox A per se, or as matter of law or conclusively 
 fraudulent, and that whether it is fraudulent in fact or 
 not, should be "decided upon all the evidence, including, 
 of course, the terms of the instrument itself.'" 
 
 1 Ranlett v. Blodgett, 1? N. H. ■S3 Wall. 518. See Means v. Dowd, 
 305 ; Mercantile Trust Co. v. Wood, 8 128 U. S. 284,0 S. < !. Rep. 65; Etheridge 
 C. C. A. 658, 60 Fed. Rep. 346. v. Sperry, 139 U. S. 266, LI S. C. Rep. 
 
 2 Collins v. Myers, 16 Ohio 547. 565. 
 
 3 Collins v. Myers, 16 Ohio 554; 6 Hughes v. Cory, 20 tow 
 McConihe v. Derby, 62 Hun (N. Y.) 410, per Dillon. J. ; Bret! v. Carter, 2 
 90, 16 N. Y. Supp. 474. Lowell. 458 : Gay v. Bidwell, 7 Mich. 
 
 4 Tennessee Nat. Bank v. Ebbert, 519; Googins v. Gilmore, 17 Me. 9\ 
 
 9 Heisk. (Tenn.) 153. Clark v. Eyman, 55 towa II. ' N. 
 40
 
 626 OPPOSING RULE AND CASES. § 353 
 
 § 353- — Lowell, J., 1 seemed ''to doubt both the gene- 
 rality and the justice" of the rule stated by Davis, J., in 
 Robinson v. Elliott, 2 and regarded the doctrine as sub- 
 stantially settled, that when a vendor or mortgagor was per- 
 mitted to retain the possession and control of his goods 
 and act as apparent owner, the question whether this was 
 a fraud or not was one of fact for the jury. The court 
 observed: "A conveyance for a valuable present con- 
 sideration is never a fraud in law on the face of the deed, 
 and if fraud is alleged to exist, it must be proved as a 
 fact." It is considered plain that the doctrine of Robinson 
 v. Elliott "virtually prevents a trader from mortgaging 
 his stock at any time for any useful purpose; for if he 
 cannot sell in the ordinary course of trade, or only as the 
 trustee and agent of the mortgagee, he might as well 
 give possession to the mortgagee at once and go out of 
 business." 
 
 It is to be noticed that the court by this sentence 
 expresses the belief that shifting liens upon merchandise, 
 
 W. Rep. 386 ; Fletcher v. Powers, 131 275, 11 S. C. Rep. 565. See s. C. 17 
 
 Mass. 333 : Briggs v. Parkman, 2 Met. Alb. L. J. 359, and cases cited. It 
 
 (Mass.) 258; Jones v. Huggeford, 3 may be observed that Dillon, J., 
 
 Met. (Alass.) 515 ; Hunter v. Corbett, adopted the other rule when sitting 
 
 7 U. C. Q. B. 75 ; Miller ads. Pancoast, as a circuit judge. He said: "A 
 
 29 N. J. Law, 250 ; Price v. Mazange, conveyance of personal property to 
 
 31 Ala. 701 ; Sleeper v. Chapman, 121 secure creditors, when the grantor, 
 
 Mass. 404 ; People v. Bristol, 35 Mich. by the understanding of the parties, 
 
 28 ; Wingler v. Sibley, 35 Mich. 231 ; expressed or implied, is to remain in 
 
 Hedman v. Anderson, 6 Neb. 392 ; possession of the property, with a 
 
 Cheatham v. Hawkins, 76 N. C. 335; power of sale, is void upon a princi- 
 
 Mitchell v Winslow, 2 Story 647; pie of public policy embodied in the 
 
 Miller v. Jones, 15 N. B. R. 150 ; Bar- State, irrespective of any question of 
 
 run v. Morris, 14 N. B. R. 371 ; Frank- actual and intended fraud." Re 
 
 houser v. Ellett, 22 Kan. 127, 31 Am. Kirkbride, 5 Dill. 117. 
 
 Rep. 171; Willams v. Winsor, 12 R. 'Brett v. Carter, 2 Lowell 458; 
 
 I '.i : Sherwin v. (Jaghagen, 39 Neb. Francisco v. Ryan, 54 Ohio St. 313; 
 
 57 X. W. Rep. 1005; Jaffrav v. Peoples' Savings Bk. v. Bates, 120 U. 
 
 Greenbaum, 64 [owa 492, 20 N. \V. S. 561, 7 S. C. Rep. 679. 
 
 Rep. 775 : v'anmeter v. Estill. 7* Ky. 2 22 Wall. 513. 
 iv, : Etheridge v. Sperry, 139 O. S.
 
 § 353 OPPOSING RULE AND CASKS. 
 
 which open and close at the will of the mortgagor, are 
 not necessarily fraudulent contrivances devised to defeat 
 creditors; on the contrary, such mortg ;eem to be 
 
 contemplated as capable of subserving a "useful pur- 
 pose." Many of the cases, however, which follow Brett 
 v. Carter, in holding that fraud is a question of fact, con- 
 cede, and often expressly state, that contrivances of this 
 class are convenient covers for fraud upon creditors. It 
 seems to have been admitted in Brett v. Carter, 1 that 
 there was no fraud in fact as it is commonly termed : 
 that the transaction showed that all the stock, present and 
 future, was hypothecated to the payment of a certain debt 
 by instalments. "No offer is made," said Lowell, J., 
 "to prove that any one was deceived, or even was igno- 
 rant of the mortgage; but I am asked to find fraud in 
 law, when I know, and it is admitted, there was none in 
 fact." The court cites Mr. May's treatise as authority 
 for the statement that fraud is a question of fact,* but 
 omits to note that the learned author was on the page 
 cited discussing the question of the effect of the simple 
 retention of possession, and fails to note the following 
 observation : 3 "The rule seems to be that where there 
 is an absolute conveyance, and the grantor remains in 
 possession in such a way as to be able to use the goods as 
 his own, it is always void against creditors, even though 
 made on valuable consideration. 4 
 
 In Etheridge v. Sperry, 5 Mr. Justice Brewer said : 
 "Indeed if this were an open question, we could not be 
 blind to the fact that the tendency of this commercial 
 age is towards increased facilities in the transfer ol 
 property, and to uphold such transfers so far as they are 
 made in good faith ; and it is at least worthy of thought, 
 
 1 2 Low. 458. "See Pierce on Fraudulent Mort- 
 
 ,J May on Fraudulent Conveyances, gages of Merchandi 
 
 p. 106. 5 139 L. S. 'Ill, 11 s. C. Rep. 566. 
 3 Ibid. p. 100.
 
 628 THE PRINCIPLE INVOLVED. § 354 
 
 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 record- 
 ing of a real estate mortgage, gives notice to all parties 
 interested of the fact' and extent of incumbrances. Why 
 should a transaction 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 conditions as he and his 
 creditor may agree upon ? As between the parties no 
 court would question this right, or refuse to enforce the 
 
 conditions If the question were open, or a new 
 
 one, unaffected by any settled law of the State, we incline 
 to the opinion that the question is not one of law, so 
 much as it is one of fact and good faith." 1 The ideas 
 advanced by Judge Lowell in Brett v. Carter 2 are cer- 
 tainly being favored, and are said to prevail in one-half 
 of the States of the Union. 
 
 § 354. Discussion of the principle involved. — It is foreign 
 to our design to kindle the smouldering embers of this 
 discussion into new flame. It will be seen at a glance 
 that the subject-matter of contention in the controversy 
 is the much-debated distinction between fraud in law and 
 fraud in fact. The conclusion is reached in our opening 
 chapter, 3 that this distinction is largely mythical, and 
 relates only to the character and quantity of the proof 
 
 1 See Torbert v. Hayden, 11 Iowa 426, 8 S. C. Rep. 193 ; Smith v. Craft, 
 
 435 ; Bughes v. < !ory, 20 Iowa 399 ; 123 U. 8. 436, 8 S. C. Rep. 196 ; Barron 
 
 < Hark v. Hyman, 55 Iowa 14, 7 N. W. v. Morris, 14 Nat. Bk. Reg. 371 ; Miller 
 
 Rep. 386; Sperry v. Etheridge. 6:} v. Jones, 15 Nat. Bk. Reg. 150. 
 [owa 543, 19 N. \V. Rep. 657 ; Jaffraj 2 2 Lowell 458. 
 
 v. Greenbaum, 64 Iowa 492, JON. W. 'See §§9, 10. 
 
 Rep. 77.") : Jewell v. Knight, 123 U. S.
 
 §354 THE PRINCIPLE INVOLVED. 
 
 adduced to nullify the transaction. Where the evidence 
 is of such a conclusive nature that the fraudulent intent 
 unmistakably fastens its fangs upon the transfer, so that a 
 verdict or finding contrary to the evident evil design so 
 established would be erroneous, the court pronounces the 
 transaction covinous, and imputes the fraudulent intent 
 to the parties in obedience to the principle of law that 
 they must have contemplated the natural and necessary 
 consequences of their acts. Where the facts an; not con- 
 troverted and do not admit of a construction consistent 
 with innocence, surely the burden is cast upon the court 
 to declare the result. There is no question of intention 
 to be submitted to the jury. As the mortgage shows 
 upon its face that it was not designed by the parties as an 
 operative instrument between them, its only effect is to 
 prejudice others. The court should "pronounce it void, 
 for the reason that the evidence conclusively shows it 
 fraudulent." 1 It is because such trusts are calculated to 
 deceive and embarrass creditors, because they are not 
 things to which honest debtors can have occasion to 
 resort in sales of their property, and because they con- 
 stitute the means which dishonest debtors commonly and 
 ordinarily use to cheat their creditors, that the law does 
 not permit a debtor to say that he used them for an honest 
 purpose in any case. 2 Chief-Justice Ryan said : " Intent 
 does not enter into the question. Fraud in fact goes to 
 avoid an instrument otherwise valid. But intent, bona 
 fide or mala fide, is immaterial to an instrument per se 
 fraudulent and void in law. The fraud which the law 
 
 imputes to it is conclusive Fraud in fact imputed 
 
 to a contract (valid on its face) is a question of evidence ; 
 not fraud in law. And no agreement of the parties in 
 
 1 Russell v. Winne, 37 N. Y. 595. s Coolidge v. Melvin, 42 X. II. 520 
 
 Winkley v. Hill, 9 N. H. 31.
 
 630 SALES FOR MORTGAGEE'S BENEFIT. §§ 355, 356 
 
 parol can aid a written instrument fraudulent and void in 
 law." 1 
 
 § 355. Authorizing sales for mortgagee's benefit. — Three 
 cases,' decided in the New York Court of Appeals in 
 rapid succession, and approved in the same court in a 
 later case, 3 held that a chattel mortgage was not per se 
 void because of a provision contained in it allowing the 
 mortgagor to sell the mortgaged property and account to 
 the mortgagee for the proceeds, and apply them to the 
 mortgage debt. 4 " These cases,'' says Finch, J., " went 
 upon the ground that such sale and application of pro- 
 ceeds is the normal and proper purpose of a chattel 
 mortgage, and within the precise boundaries of its lawful 
 operation and effect. It does no more than to substitute 
 the mortgagor as the agent of the mortgagee, to do 
 exactly what the latter had the right to do, and what it 
 was his privilege and his duty to accomplish." 5 It may 
 be observed that a subsequent judgment-creditor is 
 entitled to have an account of the sales so made stated, 
 and to have the amount thereof applied to reduce the 
 mortgage debt, 6 and the mortgagee must be charged with 
 the amount of any goods sold on credit. 7 
 
 § 356. Sales upon credit. — The rule being established 
 that the mortgagor may sell the property and account for 
 
 1 Blakeslee v. Rossnian, 43 Wis. 5 Brackett v. Harvey, 91 N. Y. 221 ; 
 
 124. s. P. Wilson v. Sullivan, 58 N. H. 
 
 * Ford v. Williams, 24 N. Y. 359 ; 260 ; Hawkins v. Hastings Bank, 1 
 
 Conkling v. Shelley, 28 N. Y. 360; Dillon 462 ; Overman v. Quick, 8 Biss. 
 
 Miller v. Lock wood, 32 N. Y. 293. 134 ; Abbott v. Goodwin, 20 Me. 408 ; 
 
 3 Brackett v. Harvey, 91 N. Y. 221. Crow v. Red River Co. Bank, 52 Tex. 
 See Hawkins v. Hastings Bank, 1 362; Fletcher v. Martin, 126 Ind. 55, 
 Dillon 462 ; Spaulding v. Keyes, 125 25 N. E. Rep. 886 ; Lane v. Starr, 1 S. 
 N. V. 117, 26 N. E. Rep. 15 ; Gleason Dak. 107, 45 N. W. Rep. 212. 
 
 v. Wilson, 48 Kan. 500, 29 Pac. Rep. 6 Ellsworth v. Phelps, 30 Hun (N. 
 
 698. Y.) 646. 
 
 4 See Prentiss Tool and Supply Co. 7 Warren v. His Creditors, 3 Wash. 
 v. Schirmer, 186 N. Y. 305, 32 N. E. St. 48, 28 Pac. Rep. 257. 
 
 Rep. 849.
 
 § 35^ SALES UPON CREDIT. 
 
 the proceeds to the mortgagee, and that such an arran 
 ment is not fraudulent in law if made with an hon 
 intention, 1 another phase of the controversy must be i 
 sidered. What will be the effect if the mortgagor is not 
 restricted to sales for cash, but is allowed to sell upon 
 credit, in his discretion? Elsewhere it is shown that 
 general assignments permitting the assignee to sell upon 
 credit are regarded as fraudulent, because such 
 ments hinder and delay creditors and prevent the imme- 
 diate application of the debtor's property to the payment 
 of their claims. 2 The same principle has been extended 
 and applied to sales of the mortgaged property made upon 
 credit by the mortgagor for the mortgagee. The arrange- 
 ment is calculated to keep the creditors at bay, and is 
 regarded as fraudulent /^r se. z If, however, the accounts, 
 where the sales are effected on credit, are immediately 
 transferred to the mortgagee at their face, and credited 
 or allowed upon the mortgage debt, the objectionable 
 elements of the transaction are eliminated, and the 
 arrangement will be tolerated. 4 In Brown v. Guthrie, 5 
 Finch, J., said : " The dealing, therefore, must be treated 
 as a chattel mortgage by the debtor to his creditor, the 
 consideration of which was evidenced and settled by the 
 outside agreement. So regarded, the findings declare it 
 to have been in good faith and not fraudulent. The 
 arrangement for the sale on credit was made harmless by 
 the stipulation that Guthrie should take the credits as 
 cash, and himself bear the delay, and risk the solvency of 
 the purchasers." 6 
 
 'Ford v. Williams. 24 N. Y. 359; 3 City Bank v. Westbury, i»i Mm. 
 
 Brackett v. Harvey, 91 N. Y. 221 ; (N. Y.) 458. 
 
 Hawkins v. Hastings Bank, 1 Dill. 462. 4 Caring v. Richmond, 22 Bun (N. 
 
 4 Nicholson v. Leavitt, 6 N. Y. 510; Y.) 370. 
 
 Barney v. Griffin, 2 N. Y. 365 ; Dun- 5 110 N. Y. 435, 443. 
 
 ham v. Waterman, 17 N. Y. 21. See 6 Citing Brackett v. Barvey, 91 N 
 
 §§ 332, 333. Y. 214.
 
 632 CHANGE OF POSSESSION. §§ 356a-357 
 
 § 356a. Secret trust. — In a controversy in Nebraska, 
 where the chattel mortgage covered all the debtor's prop- 
 erty, and was not recorded, and the mortgagee took 
 formal possession and held the same subject to the 
 direction of the mortgagor, until by sale or lease the 
 debt secured should be paid, the mortgagor to receive 
 the balance, the arrangement was held fraudulent as to 
 the other creditors. 1 
 
 § 356b. Change of possession. — In most States it is pro- 
 vided by statute that a mortgage of chattels not accom- 
 panied by a change of possession shall be void as against 
 creditors unless the mortgage shall be filed. It is a 
 necessary feature of the possession to which the statute 
 refers that it should be open, visible and free from con- 
 cealment. It then becomes notice in its highest form of 
 the claim of the possessor, and the constructive notice 
 which arises from the filing of the mortgage becomes 
 unnecessary. But when the change of possession is not 
 of that character, so that it fails to disclose itself to others 
 than the immediate parties to the transfer, however honest 
 they may have been in their intentions, the situation 
 exists which the statute was designed to prevent." 
 
 § 357- Possession — Independent valid transactions. — 
 Manifestly selling or taking possession of the property 
 under and by virtue of the fraudulent mortgage cannot 
 purge it of the vice of fraud. 3 The title remains fraudu- 
 
 1 Bacon v. P. Brockman Com. Co., Supreme Court of New York, in Dela- 
 
 18 Neb. 365, 67 N. W. Rep. 304. ware v. Ensign, 21 Barb. (N. Y.) 35, 
 
 ' J Tedesco v. Oppenheimer, 15 Misc. and Dutcher v. Swartwood, 15 Hun 
 
 (N. Y.) 524, 37 N. V. Supp. 1073; (N. Y.) 31; the Court of Appeals of New 
 
 Crandall v. Brown, 18 Hun (N. Y.) York, in Parshall v. Eggert, 54 N. Y. 
 
 461 ; Hale v. Sweet, 40 N. Y. 97 ; 18 ; the Supreme Court of Wisconsin, 
 
 Steele v. Benhain, 84 N. Y. 634. in Blakeslee v. Rossman, 43 Wis. 116, 
 
 8 In Wella v. Langbein, 20 Fed. and the Supreme Court of Minnesota, 
 
 Rep. 183, 186, the court observes: in Stein v. Munch, 24 Minn. 390,— all 
 
 " The Supreme Court of California, in hold that where the mortgage is void 
 
 Chenery v. Palmer, 6 Cal. 123; the for fraud as to creditors, taking pos-
 
 § 357 POSSESSION. 
 
 lent and voidable still as against creditors. 1 Before and 
 after taking possession, the title of the mortgagee i 
 equally upon the mortgage, and the question, as regards 
 creditors of the mortgagor, is the validity of his paper 
 title. The mortgagee's possession under the mortg 
 is as good or as bad as the mortgage itself, and the court 
 has not the power to transmute a void mortgage into a 
 valid pledge. 2 In Stephens v. Perrine, 3 the court says : 
 " The mortgage, as to the creditors of the mortgagor, was 
 always void. It continued to be void notwithstanding the 
 fact that the mortgagee assumed to take possession under 
 and to sell the property by virtue of such void instru- 
 ment I cannot see the force of the reasoning 
 
 which, while admitting that the mortgage is void as to 
 creditors, nevertheless asserts that a title to the property 
 covered by it may be obtained by the mortgagee by pro- 
 ceedings taken under it and which assert the validity of 
 such instrument If void, what right has the mort- 
 gagee, as against creditors, to take possession in her char- 
 acter of mortgagee and to sell or dispose of propem 
 described in it?" But even in cases where the mortgage 
 is fraudulent, if the mortgagee repudiates the instrument 
 and casts it aside, and obtains a pledge of the goods, 
 accompanied by delivery and an open change of posses- 
 sion, and by a distinct agreement subsequent to and inde- 
 
 session thereunder, before a lien is ob- 448; Hedges v. Polhemus, 9 Misc. (N. 
 
 tained on the property in favor of a Y.) 680, 30 N. Y. Supp. 556; In n 
 
 creditor, will not render it valid. The Forbes, 5 Biss. 510 : Janvrin v. Fi 
 
 fraud existing in the mortgage itself 49 N. H. 340 ; Wells v. Langbein, 30 
 
 vitiates all steps taken under it." Fed. Rep. 183, 186 ; Mandeville v. 
 
 1 Smith v. Ely, 10 N. B. R. 563. Avery, 124 N. Y. 376, 26 N. K. Rep. 
 
 2 Blakeslee v. Rossman, 43 Wis. 951 ; Karst v. Gane, 136 N. Y. 816, 82 
 127. See Robinson v. Elliott, 22 Wall. N. E. Rep. 107:;. But compare Bald 
 513 ; Dutcher v. Swartwood, 15 Hun win v. Flash, 59 Miss. 66, and < 
 
 (N. Y.) 31 ; Stimson v. Wrigley, 86 N. cited. 
 
 Y. 332 ; State v. Roever, 55 Mo. App. s 143 N.Y. 476, 480. :«• N. E. Rep. 11
 
 634 RIGHT OF REVOCATION. §§ 358, 359 
 
 pendent of the mortgage, his rights will be protected as 
 against the other creditors. 1 
 
 § 358. Right of revocation — Reservations. — We have 
 seen that a debtor, before any lien attaches in favor of cred- 
 itors, possesses the right to make any disposition of his 
 property. 3 The contract, however, by which he parts 
 with it must be absolute and unconditional, for if he 
 retain the right to revoke the contract and resume the 
 ownership of the property, the reservation is considered 
 as inconsistent with a fair, honest and absolute sale, and 
 renders the transfer fraudulent and void. 3 In the great 
 case of Riggs v. Murray, 4 in which the various instru- 
 ments of transfer contained powers of revocation, Chan- 
 cellor Kent held the transfers void, saying that there was 
 a necessary inference of a purpose to " delay, hinder or 
 defraud creditors," that the only effect of these assign- 
 ments was " to mask the property ;" and that such powers 
 of revocation are fatal to the instrument and poison it 
 throughout, appears to have been well established by 
 authority. 5 So a deed reserving the right to the grantor 
 to sell and convey the property without the consent of the 
 grantee, is inconsistent with the idea of a sale, and may 
 be avoided by creditors. 6 
 
 § 359. Rule as to consumable property. — The mortgaging 
 of property, the use of which involves its consumption, is 
 
 1 Pettee v. Dustin, 58 N. H. 309 ; 6 Compare Smith v. Conkwright, 28 
 Brown v. Piatt, 8 Bosw. (N. Y.) 324; Minn. 23; Shannon v. Common- 
 First Nat. Bank v. Anderson, 24 wealth, 8 S. & R. (Pa.) 444 ; The King 
 Minn. 435 ; Baldwin v. Flash, 58 Miss. v. Earl of Nottingham, Lane 42 ; 
 593 ; Bowdish v. Page, 153 N. Y. 104 ; Smith v. Hurst, 10 Hare 30. 
 Nat. Shoe & Leather Bank v. August, 6 Fisher v. Henderson, 8 N. B. R. 
 54 N. J. Eq. 182. 175. Compare Henderson v. Down- 
 
 3 See § 52. ing, 24 Miss. 106 ; Coolidge v. Melvin, 
 
 3 West v. Snodgrass, 17 Ala. 554. 42 N. H. 510 ; Donovan v. Dunning, 
 
 4 2 Johns. (N. Y.) 565. But see 69 Mo. 436; Lukins v. Aird, 6 Wall. 
 Murray v. Riggs, 15 Johns. (N. Y.) 78. See May on Fraudulent Convey - 
 571. ances, 93,94. See § 11, and cases cited.
 
 § 359 a DISTINCT CLAIMS. 
 
 an evidence of fraud of much weight Unless satisfac- 
 torily explained it will cause the condemnation of the 
 instrument. 1 Of course articles in their nature subject 
 to be consumed in their use maybe mortgaged without 
 any imputation of fraud, provided they are not to be used, 
 and may be kept without damage until the mortgage debt 
 shall become payable. 2 If, however, the mortgage cov< 
 articles which would perish or be destroyed before the 
 debts secured by the mortgage mature, it becomes mani- 
 fest that the object was not to apply these things to the 
 payment of the mortgage, but to secure the debtor in 
 their possession and enjoyment. 8 
 
 § 359a. Distinct claims. — Manifestly an honest creditor 
 does not lose his security because the mortgage consti- 
 tuting the security embraces the separate claim of a party 
 who participated with the mortgagor in perpetrating a 
 fraud. 4 
 
 'Farmers' Bank v. Douglass, 19 9 Misc. (N. Y.) 680, 30 N. V. Sui.il 
 
 Miss. 540 ; Brockenbrough v. Brock- 556. 
 
 enbrough, 31 Gratt. (Va.) 590 ; Som- 2 Robbins v. Parker, 3 Met. (Mi 
 
 merville v. Horton, 4 Yerg. (Tenn.) 130. Compare Miller v. Jones, 15 N. 
 
 550 ; Shurtleff v. Willard, 19 Pick. B. R. 154. 
 
 (Mass.) 202; Robbins v. Parker, 3 3 Farmers' Bank v. Douglass, 18 
 
 Met. (Mass.) 120. See Googins v. Gil- Miss. 541. See Quarles v. Kerr, 11 
 
 more, 47 Me. 14 ; Putnam v. Osgood, Gratt. (Va.) 48. 
 
 51 N. H. 200; Hedges v. Polhemus, 4 Morgan v. Worden, 145 tnd. 600.
 
 CHAPTER XXIII. 
 
 SPENDTHRIFT TRUSTS. 
 
 360. Aversion to exemptions other 
 
 than statutory. 
 
 361. Restraints upon alienation. 
 
 " i Repugnant conditions. 
 
 363. ) L ° 
 
 364. Nichols v. Eaton ; the point 
 
 actually involved. 
 
 365. The dictum in Nichols v. Eaton. 
 
 366. The correct rule. 
 
 §367. Broadway National Bank v. 
 Adanis. 
 367a. Spread of the doctrine. 
 3676. New York rule as to trust 
 
 income. 
 368. Spendthrift trusts in Pennsyl- 
 vania. 
 368a. Powei's — When not assets. 
 
 "The general introduction of spendthrift trusts would be to form a privileged class, who could 
 indulge in every speculation, could practice every fraud, and yet, provided they kept on the safe 
 side of the criminal law, could roll in wealth. They would be an aristocracy, though certainly 
 the most contemptible aristocracy with which a country was ever cursed." — Professor Gray in 
 Restraints on Alienation, § 262. 
 
 " It is a settled rule of law that the beneficial interest of the cestui que trust, whatever it maybe, 
 is liable for the payment of his debts. It cannot be so fenced about by inhibitions and restrictions 
 as to secure to it the inconsistent characteristics of right and enjoyment to the beneficiary and 
 immunity from his creditors." — Mr. Justice Swayne in Nichols v. Levy, 5 Wall. 441; over- 
 shadowed in Nichols v. Eaton, 91 U. S. 716. 
 
 §360. Aversion to exemptions other than statutory. — 
 Aside from statutory exemptions trivial in amount, 1 the 
 idea of the existence of rights of property of any kind, 
 legal or equitable, in a debtor, which cannot be reached 
 by creditors and applied toward the satisfaction of debts, 
 is or should be abhorrent to modern convictions of jus- 
 tice toward the creditor class. This sentiment is reflected 
 in the legislation limiting exemptions to very small sums. 
 The personal liberty of the debtor being no longer in 
 danger, and his body being exempt from torture or 
 slavery at the hands of infuriated creditors, there exists 
 
 1 See §§ 46-50, 365. Arkansas, 
 Kansas, Texas and Nevada are States 
 that have rather liberal exemption 
 statutes. Beyond the point of protect- 
 
 ing absolute necessaries, sucli statutes 
 are harmful to a State, as they frighten 
 away commerce and capital and de- 
 stroy the credit of the people.
 
 § 360 AVERSION TO EXEMPTIONS. 
 
 no controlling check upon his recklessness and improvi- 
 dence, 1 other than his sense of honor, which too often 
 proves to be an undeveloped quantity. This is the sour, e 
 of the strong tendency, manifested in some of the coui 
 to strengthen, enlarge and perfect the creditors' remedies 
 and recourses against the property and interests of the 
 debtor class, who operate under the guise of conti 
 obligations, skillfully eluding the sharp edges of the stat- 
 utes against larceny. The plain purpose manifested 
 in our modern law in extending relief to creditors is two- 
 fold : first, to enforce the creditors' equitable lien upon the 
 debtor's property considered as somewhat in the nature 
 of a trust fund; 3 and secondly, to inflict a species of 
 negative punishment upon the debtor by depriving him 
 of the personal comforts and enjoyments which result 
 from the possession and use of property or accumulated 
 wealth. This latter wise and necessary policy of the law 
 has been almost obscured by an out-pouring of sentimental 
 sophistry in the courts. There should be no spectacle 
 more revolting to the mass of mankind, and especially in 
 a community such as ours, than that of a bankrupt or 
 insolvent debtor revelling and dwelling in luxury, and 
 disporting himself with the proceeds of another man's 
 goods, and enjoying a trust income that judicial writs 
 cannot touch. It is opposed to a wise public policy that 
 a man ''should have an estate to live on, but not an 
 estate to pay his debts with," 3 or that he should possess 
 " the benefits of wealth without the responsibilities." 4 
 Chief-Justice Denio said : " It is against general principles 
 that one should hold property, or a beneficial interest in 
 property, by such a title that creditors cannot touch it." 
 
 1 See § 2. 4 Gray on Restraints on AJienation, 
 
 2 See Egery v. Johnson, 70 Me. 258 ; p. 169. 
 
 Seymour v. Wilson, 19 N. Y. 418. Rome Exchange Bank v. Barnes, 
 
 3 Tillinghast v. Bradford. 5 R. I. 4 Abb. App. Dec (N. Y.> 88, ft, 
 205, 212. "That grown men should be kepi all
 
 638 AVERSION TO EXEMPTIONS. § 360 
 
 We earnestly protest against almost every line of these 
 obnoxious income exemption cases. The force of the 
 bad example seems to be forgotten in permitting the 
 growth of spendthrift trusts. The spectacle of a judg- 
 ment-debtor living unmolested upon protected income, or 
 money that is under a charm, without fleeing from his 
 creditors to sanctuary ground as of yore, is not calculated 
 to awaken feelings of thrift, or to inspire habits of economy, 
 in other people. It tends rather to suppress the natural 
 and laudable ambition of industrious people to accumu- 
 late property through the usual lawful channels of intelli- 
 gent enterprise, having due consideration for the rights 
 of creditors, and proper respect for the perils of insolvency, 
 and a wholesome dread of its privations. It tends also 
 to cheapen regard for accumulated wealth, and its com- 
 forts, considered solely as an honest reward for skill and 
 patient industry. It neglects to enforce necessary pre- 
 cepts of honesty. It lifts the profligate insolvent above 
 the class in which his own achievements would place him. 
 and clothes him with borrowed plumage and deceptive 
 indicia of thrift. 
 
 The feelings of the industrial world were shocked at 
 the dictum of Wright, J., in Campbell v. Foster, 1 to the 
 effect that the surplus of a trust fund created by a third 
 party, for the benefit of a judgment-debtor, was not 
 available to his creditors. The more recent opinion of 
 Rapallo, J., in Williams v. Thorn, 2 holding that, whether 
 
 their lives in pupilage, that men not ' 35 N. Y.361 ; Howard v. Leonard, 
 
 paying their debts should live in 3 App. Div. (N. Y.) 277, 38 N. Y. Supp. 
 
 luxury on inherited wealth, are 363. See § 45. 
 
 doctrines as undemocratic as can well 5 70N. Y. 270 ; 2d Appeal, 81 N. Y. 
 
 be conceived. They are suited to the 381 ; Wetmore v. Wetmore, 149 N. Y. 
 
 times in which the Statute De Donis 520, 44 N. E. Rep. 169 ; Tolles v. Wood, 
 
 was enacted, and the law was 99 N. Y. 616, 1 N. E. Rep. 251 ; Thomp- 
 
 administered in the interest of rich son v. Thompson, 52 Hun (N. Y.) 456 ; 
 
 and |". wilful families." Gray <>n Spindle v. Shreve. Ill U. S. 546, 4S. C. 
 
 Restraints on Alienation, p. 174. Rep. 522; Kilrov v. Wood, 42 Hun
 
 § 3 6 l RESTRAINTS UPON ALIENATION. 
 
 the trust relate to realty or personalty, the surplus income 
 of such an estate, beyond what was needed for the 
 suitable support and maintenance of the cestui que trust 
 and those dependent upon him, could be reached by a 
 creditors' bill, was greeted with satisfaction, as being good 
 as far as it went. A tendency is manifesting itself, how- 
 ever, to close another source of possible relief to credit 
 ors, by the classes of cases already referred to 1 and 
 which will presently be considered more at length, 2 depriv- 
 ing creditors of the right to treat powers as assets and 
 limiting or denying their right to reach trust income 
 arising from third parties. First, however, we will glance 
 at the authorities which discuss the rights of the parties 
 in cases where property has been conveyed with a restraint 
 imposed upon its alienation, or an attempt has been 
 made to vest it in the grantee without subjecting it to 
 liability to his creditors. 
 
 § 361. Restraints upon alienation. — The theory of the law 
 is that no person shall be permitted to enjoy or hold any 
 interest in property to which the incidents of ownership, 
 i. e., the right of alienation and liability to the claims and 
 remedies of creditors, do not attach. 3 A condition or 
 proviso in a grant or devise that the land shall not be 
 subject to alienation, attachment, or levy, is commonly 
 treated as void. 4 The policy of the law will not permit 
 
 (N. Y.) 636; Bunnell v. Gardner, 4 Am. Law Reg. N. S. 180; and the 
 
 App. Div. (N. Y.) 322; Andrews v. learned note by Henry Wade Rogers, 
 
 Whitney, 82 Hun (N. Y.) 123, 31 N. Y. Esq., at page 185, reviewing the 
 
 Supp. 164; Genetv. Beekman, 45 Barb. authorities. Prof. Gray Bays (Gray's 
 
 (N. Y.) 382 ; Watkyns v. Watkyns, Restraints on Alienation), p. 14 : \.B 
 
 2Atykns96. See Arzbacher v. Mayer, in England, so in America, a condi- 
 
 53 Wis. 391, 10 N. W. Rep. 440. tion, or a conditional limitation, 
 
 1 See §§ 40, 45, and note, restraining the owner in fee simple 
 
 2 See §§ 364-367. from selling his land, is bad. " Potter 
 3 SeeChap. II. v. Couch. Ill I'. S. 296 ; Munn 
 4 Blackstone Bank v. Davis, 21 Hall, 97 N. C. 806; In re Watson & 
 
 Pick. (Mass.) 42; McCleary v. Ellis, Woods, 14 Out, 48; Kahanaii 
 
 54 Iowa 311, 6 N. W. Rep. 571, 20 Kohala Sugar Co., 6 Hawaiian 694
 
 640 
 
 RESTRAINTS UPON ALIENATION. 
 
 §36l 
 
 property to be so limited as to remain in a party for life, 
 free from the incidents of property, and not subject to 
 
 Helming v. Harrison, 13 Bush (Ky.) 
 
 723 ; Smith v. Clark, 10 Mtl. 186 ; 
 Gleason v. Fayerweather, , 4 Gray 
 
 (Mass.) 348 ; Campau v. Chene, 1 
 Mich. 400; McDowell v. Brown, 21 
 Mi>. 57; Pardue v. (.livens, 1 Jones' 
 Eq. (N. C.) 306 ; Schermerhorn v. 
 Negus, 1 Denio(N.Y-) 448; Lovett v. 
 Kingsland, 44 Barb. (N. Y.) 560; 
 sub n< >nt. Lovett v. Gillender, 35 N. 
 Y. 617: Walker v. Vincent, 19 Pa. 
 St. 369 ; Williams v. Leech, 28 Pa. 
 St. 89 ; Naglee's Appeal, 33 Pa. St. 
 89 ; Jauretche v. Proctor, 48 Pa. St. 
 466 ; Kepple's Appeal, 53 Pa. St. 211 ; 
 Lario v. Walker, 28 Grant (Out. ) 216. 
 These cases are decisions directly in 
 point, and dicta to the same effect are 
 found in abundance, e. g., in Taylor v. 
 Mason, 9 Wheat. 325, 350; Mc- 
 Donogh v. Murdoch. 15 How. 367, 
 412 ; Andrews v. Spurlin, 35 Ind. 262, 
 268 ; Deering v. Tucker, 55 Me. 284, 
 289 ; Hawley v. Northampton, 8 Mass. 
 3, 37 ; Gray v. Blanchard, 8 Pick. 
 (Mass.) 284, 289 ; Van Rensselaer v. 
 Dennison, 35 N. Y. 393 ; Turner v. 
 Fowler, 10 Watts (Pa.) 825; Reifsnyder 
 v. Hunter, 19 Pa. St. 41 ; Doebler's 
 Appeal, 64 Pa. St. 9 ; Grant v. Car- 
 penter, 8 R. I. 36 ; Doe d. Mclntyre 
 v. Mclntyre, 7 IT. C. Q. B. 156 ; Mc- 
 Master v. Morrison, 14 Grant (Ont.) 
 138, 141 ; Crawford v. Lundy, 23 
 Grant (Ont.) 244, 250; Fulton v. 
 Fulton, 24 Grant (Ont.) 422. See De- 
 horty v. Jones, 2 Hair. (Del.) 56, note ; 
 NYwkerk v. Newkerk, 2 Cai. (N. Y.) 
 345 : and see Allen v. Craft, 109 Ind. 
 476, 483 ; Todd v. Sawyer, 147 Mass. 
 570; Winsor v. Mills, 157 Mass. 362, 
 364 ; Jauretche v. Proctor, 48 Pa. St. 
 m ; James v. Card, 13 Vict. L. R. 
 miis, 913; Bassett v. Budlong, 77 
 
 Mich. 338. The authorities arc in 
 
 much confusion as to the validity of 
 
 a condition against alienation, con- 
 fined to a limited period. SeeCowell 
 v. Springs Co., 100 U. S. 55, 57; Black- 
 stone Bank v. Davis, 21 Pick. (Mass.) 
 42 ; Munroe v. Hall, 97 N. C. 206, 210 ; 
 In re Northcote, 18 Ont. 107 ; 
 Mandelbaum v. McDonell, 29 Mich. 78; 
 In re Rosher, 26 Ch. Div. 801 ; Potter 
 v. Couch, 141 U. S. 296 ; Bennett v. 
 Chapin, 77 Mich. 526 ; Prit< hard v. 
 Bailey, 113 N. C. 521. A gift over of 
 a fee simple, if the owner does not 
 convey, is not valid. See Van Home 
 v. Campbell. 100 N. Y. 287 ; Mc- 
 Kenzie's Appeal, 41 Conn. 607 ; Wead 
 v. Gray, 78 Mo. 59 ; Perry v. Cross, 
 132 Mass. 454 ; Carr v. Effinger, 78 
 Va. 197 ; Wolfer v. Hemmer, 144 
 111. 554 ; Ball v. Hancock, 82 Ky. 107 ; 
 Hoxsey v. Hoxsey, 37 N. J. Eq. 21 ; 
 Stowelt v. Hastings, 59 Vt. 494. The 
 rule applies also to personalty. Foster 
 v. Smith, 156 Mass. 379 ; Hoxsey v. 
 Hoxsey, 37 N. J. Eq. 21 ; Allen v. 
 White, 16 Ala. 181. On this general 
 subject of the ineffectual nature of 
 restrictions upon alienations see 
 Oxley v. Lane, 35 N. Y. 340 ; Wil- 
 liams v. Leech, 28 Pa. St. 89: Murray v. 
 Green, 64 Cal. 363 ; Lane v. Lane, 8 
 Allen (Mass.) 350 ; Turner v. Hallo- 
 well Sav. Inst. 76 Me. 527 ; Be 
 Traynor & Keith, 15 Ont. 469 ; Black- 
 stone Bank v. Davis, 21 Pick. (Mass.) 
 42 ; Sears v. Putnam, 102 Mass. 5, 9 ; 
 Winsor v. Mills, 157 Mass. 362. So 
 provisions that equitable interests in 
 fee shall not be liable for the debts of 
 the cestuis que trust are inoperative. 
 Taylor v. Harwell, 65 Ala. 1 ; Turley 
 v. Massenftill, 7 Lea (Tenn.) 353. See 
 Gray v. Obear, 54 Ga. 231, cited in 
 Grayon Restraints, § 115. Bramhallv. 
 Ferris, 14 N. Y. 41, 44. Some 
 authorities assert that where the 
 beneficiary is also the trustee his
 
 § 3 62 REPUGNANT CONDITIONS. ' , , | 
 
 his debts. 1 At least this is what has been taught and 
 commonly accepted. 
 
 §362. Repugnant conditions. — Restraints upon either vol- 
 untary or involuntary alienation are not favored in the 
 law, and are defeated upon another ground. In De 
 Peyster v. Michael, 2 after a careful n.-vicw of the authori- 
 ties, the New York Court of Appeals observed : "Upon 
 the highest legal authority, therefore, it may beaffirmed 
 that in a fee-simple grant of land, a condition that the 
 grantee shall not alien, or that he shall pay a sum of 
 money to the grantor upon alienation, is void, on the 
 ground that it is repugnant to the estate granted." In 
 Potter v. Couch, 3 the court says : " The right of aliena- 
 tion is an inherent and inseparable quality of an estate in 
 fee simple. In a devise of land in fee simple, therefore, a 
 condition against all alienation is void, because repugnant 
 to the estate devised." So in Bradley v. Peixoto, 4 the 
 court say that it is " laid down as a rule long ago estab- 
 lished, that where there is a gift with a condition incon- 
 sistent with, and repugnant to such gift, the condition is 
 wholly void. A condition that tenant in fee shall not 
 alien is repugnant.'' 5 In Mandlebaum v. McDonell 6 
 will be found an elaborate review of the cases and an 
 exhaustive consideration of the question. The court 
 conclude that the only safe rule of decision is that which 
 prevailed at common law for ages, to the effect that " a 
 condition or restriction which would suspend all power of 
 
 interest may be taken on execution. 50 Hun (N. Y.) 328, 3 X. Y. Supp, 
 
 Bolles v. State Trust Co., 27 N. J. 361. 
 
 Eq. 308. See Hobbs v. Smith, 15 Ohio 3 141 U. S. 296, 315, list. Rep. 
 
 St. 419. 1005. 
 
 1 4 Kent's Com., p. 311. See Menken * 3 Ves. Jr. 324. 
 
 Co. v. Brinkley, 94 Tenn. 730, 31 S. 5 See Brandon v. Robinson, 18 Vea 
 
 W. Rep. 92. Jr. 429 ; McCullough v. Gilmore, 11 
 
 3 6 N. Y. 467, 497 ; Oxley v. Lane, Pa. St. 370. 
 
 35 N. Y. 346 ; Wieting] v.; Bellinger, 6 29 Mich. 78, 107. 
 
 41
 
 642 REPUGNANT CONDITIONS. § 363 
 
 alienation for a single day is inconsistent with the estate 
 granted, unreasonable, and void. 1 ' In Blackstone Bank 
 v. Davis, 1 a leading and important case, it appeared that 
 one Davis devised to his son the use of a farm of one 
 hundred and twenty acres, with a provision that the land 
 should not be subject or liable to conveyance or attach- 
 ment. The plaintiffs recovered a judgment against the 
 devisee and levied an execution upon the premises as 
 being land held by the defendant in fee. The court 
 said : '' By the devise of the profits, use, or occupation of 
 land, the land itself is devised. Whether the defendant 
 took an estate in fee or for life only, is a question not 
 material in the present case. The sole question is, 
 whether the estate in his hands was liable to attachment 
 and to be taken in execution as his property. The plain- 
 tiffs claim title under the levy of an execution against the 
 defendant, and their title is valid if the estate was liable 
 to be so taken. That it was so liable, notwithstanding 
 the proviso or condition in the will, the court cannot 
 entertain a doubt." 
 
 § 3&3- — In Walker v. Vincent 2 the testator devised 
 certain real estate to his daughter and to her legal heirs 
 forever, upon the express condition that she should "not 
 alien or dispose of the same, or join in any deed or con- 
 veyance with her husband for the transfer thereof, during 
 her natural life." The court held the condition void, and 
 that a fee-simple estate was devised, and said : " It makes 
 no difference that the testator has expressly withheld one 
 of the rights essential to a fee-simple, for the law does 
 not allow an estate to be granted to a man and his heirs, 
 with a restraint on alienation, and frustrates the most clear 
 intention to impose such a restraint, just as it allows alien- 
 ation of an estate tail, though a contrary intent is manifest. 
 
 31 Pick. (Mass.) 42. »19 Pa. St. 369.
 
 § 3°4 NICHOLS V. EATON. 
 
 And it would be exceedingly improper, in any court, 
 in construing a devise to a man and his heirs, to endeavor 
 to give effect to the restraint upon alienation by changing 
 the character of the estate to a life estate, with a remainder 
 annexed to it, or with an executory devise over." 1 In 
 Hall v. Tufts 2 the testator devised certain real estate to 
 his wife for her life, and "the remainder of his estate, 
 whether real or personal, in possession or reversion, to his 
 five children to be equally divided to and among them, 
 or their heirs, respectively, always intending and meaning 
 that none of his children shall dispose of their part of the 
 real estate in reversion before it is legally assigned them." 
 The court held that the children took a vested remainder 
 in the real estate given to the wife for her life, and that 
 the clause restraining them from alienating it before the 
 expiration of the life estate was void. 3 It is also a canon 
 of construction that an estate in fee created by will, can- 
 not be cut down or limited by a subsequent claim unless 
 it is as clear and decisive as the language of the clause 
 which devises the estate. 4 
 
 § 364. Nichols v. Eaton ; the point actually involved.— 
 This brings us to the question of the liability of trust 
 income for debts. The principle embodied in Nichols v. 
 
 1 Restraints upon personalty. — A the estate; they do not destroy or 
 condition against alienation cannot be limit its alienable or inheritable char- 
 imposed upon an absolute interest in acter." Field, J., in Cowcll v. Springs 
 personalty. Lovett v. Kingsland, 44 Co., 100 U. >S. ."iT, citing, Sheppard'a 
 Barb. (N. Y.) 560, affi'd sub nom. Touchstone, 129, 131. SeeWinsorv. 
 Lovett v. Gillender, 35 N. Y. 617 ; Mills, 157 Mass. 362, 364,32 N. E. Rep. 
 Barker v. Davis, 12 U. C. C. P. 344. 352; Jackson v. Schutz, 1* Johns. 
 4 18 Pick. (Mass.) 455. (N. Y.) 174, 184. Contra, Anderson 
 3 " Repugnant conditions are those v. Gary, 36 Ohio St. 506 : Met lullough 
 
 which tend to the utter subversion of v. Gil more, 11 Pa. St. 370. C pan 
 
 the estate, such as prohibit entirely Potter v. Couch. Ml U. S. 315, 11 8 
 
 the alienation or useof the property. Rep. 1005. The authorities cannot be 
 
 Conditions which prohibit its aliena- reconciled. 
 
 tion to particular persons or for a * Byrnes v. Stilwell, in:; N \ WO, 
 
 limited period, or its subjection to 9 N. E. Rep. 241 ; Roseboom v 1 
 
 particular uses, are not subversive of boom, 81 N. Y. 356.
 
 644 
 
 NICHOLS V. EATON. 
 
 §364 
 
 Eaton, 1 and succeeding cases, and more especially the 
 language employed by Mr. Justice Miller, in delivering 
 the opinion of the Supreme Court in that case, have pro- 
 voked extended discussion and sharp criticism, 2 in reviews, 
 philosophical productions and dissenting opinions. The 
 influence of the case has spread like the murrain among 
 sheep. The importance that the case has assumed seems 
 to call for an extended statement of the facts and features 
 involved. It appeared that property had been devised 
 to trustees with directions to pay the income to the 
 children of the testatrix in equal shares, and on the 
 death of each child, his or her share was to go over. If 
 
 1 91 U. S. 716. See Roberts v. 
 Stevens. 84 Me. 325, 24 Atl. Rep. 873 ; 
 Maynard v. Cleaves, 149 Mass. 307, 
 21 N. E. Rep. 376 ; Smith v. Towers, 
 69 Md. 77, 14 Atl. Rep. 497 : 15 Id. 92; 
 Garland v. Garland, 87 Va. 763, 13 S. E. 
 Rep. 478 ; Jarboe v. Hey, 122 Mo. 349, 
 26 S. W. Rep. 968; Lam pert v. Hay- 
 del, 96 Mo. 439, 9 S. W. Rep. 780; 
 Conger v. Lowe, 124 Ind. 371, 24 N. 
 E. Rep. 889. 
 
 2 This decision called forth an essay 
 by Professor Gray, already cited, en- 
 titled Restraints on the Alienation of 
 Property. These sentences may be 
 found in the preface : " How far the 
 law will allow a man to enjoy rights 
 in property which he cannot transfer, 
 and which his creditors cannot take 
 for their debts, is a question becoming 
 more and more frequent in this coun- 
 try. In 1876 I shared the surprise, 
 common fco man; lawyers, at the opin- 
 ion of the Supreme Court of the 
 United States, in the case of Nichols 
 v. Eaton, 91 U. S. 716, containing, as 
 it did, much that was contrary to 
 what, both in teaching and practice, 
 Iliad hitherto supposed to be settled 
 law." The preface adds that the 
 hook was substantially written before 
 the decision of the Supreme Judicial 
 
 Court of Massachusetts in Broadway 
 Nat. Bank v. Adams, 133 Mass. 170, 
 See infra, §367. In the preface to the 
 second edition of his essay Professor 
 Gray says : " If I had written with 
 any expectation of affecting the course 
 of decision, I should have been griev- 
 ously disappointed. State after State 
 has given in its adhesion to the new 
 doctrine ; the courts of Maine, Mary- 
 land, Illinois, and Vermont have 
 adopted it ; those of Delaware, In- 
 diana, and Virginia have used lan- 
 guage which leaves little doubt that 
 they will adopt it at the first oppor- 
 tunity ; and in Missouri and Ten- 
 nessee, where the old doctrine has 
 been expressly declared, it has now 
 been thrown aside, and the new views 
 embraced. Were it not for an occa- 
 sional dissenting opinion, especially 
 an extremely able one of Chief Jus- 
 tice Alvey, late of the Court of 
 Appeals of Maryland, T should be vox 
 clamantis in dcserto." The authori- 
 ties pertaining to trust incomes and 
 spendthrift trusts down to 1895 may 
 be found stated and classified in tins 
 essay to which the student desiring 
 to study all the cases in detail is 
 referred .
 
 3 6 4 NICHOLS V. EATON. 
 
 
 the sons respectively should alienate, or by reason of bank- 
 ruptcy or insolvency, or any other cause, the income could 
 no longer be personally enjoyed by them respectively, but 
 would become vested in and payable to some other per- 
 son, then the trust as to such portion so divested should 
 immediately cease and determine. In that event, during 
 the residue of the life of such son, the income was to be 
 paid to his wife or child, and in default of such person, to 
 be added to the principal, and further, "in case, after the 
 cessation of said income as to my said sons respectively, 
 otherwise than by death, as hereinbefore provided for, it 
 shall be lawful for my said trustees, in their discretion, 
 but without its being obligatory upon them, to pay to or 
 apply for the use of my said sons respectively, or for tin- 
 use of such of my said sons and his wife and family, so 
 much and such part of the income to which my said sons 
 respectively would have been entitled under the pre- 
 ceding trusts, in case the forfeiture hereinbefore provided 
 for had not happened." One of the sons became a bank- 
 rupt, and his assignee in bankruptcy brought a bill against 
 the trustees to have the income of the son's share applied 
 for the benefit of creditors. 1 
 
 Mr. Justice Miller, in the opening sentences of his opin- 
 ion, observes that the claim of the assignee is founded on the 
 
 1 Nichols v. Eaton, re-stated. — In subject to other dispositions. The as- 
 Hyde v. Woods, 94 U. S. 526, Mr. signee of the bankrupt sued to recover 
 Justice Miller observes that his own the interest bequeathed to the bank- 
 opinion ha Nichols v. Eaton, 91 U. S. rupt, on the ground thai this con- 
 716, " was well considered," and says: dition was void as against public 
 "In that case, the mother of the policy. But this court, on a full 
 bankrupt Eaton, had bequeathed to examination of the authorities, both 
 him by will the income of a in England and this country, held 
 fund, with a condition in the trust that the objection was not well taken ; 
 that on his bankruptcy or insolvency that the owner of property mighl 
 the legacy should cease and go to his make such a condition in tin- trai 
 wife or children, if he had any, and if of that winch was his own, and in 
 not, it should lapse into the general doing so violated do creditor's rights 
 fund of the testator's estate, and be and no principle of public policy."
 
 646 NICHOLS V. EATON. §3^4 
 
 proposition " that a will which expresses a purpose to vest 
 in a devisee either personal property, or the income of 
 personal or real property, and secure to him its enjoy- 
 ment free from liability for his debts, is void on 
 grounds of public policy, as being in fraud of the rights of 
 creditors ; or as expressed by Lord Eldon in Brandon v. 
 Robinson: 1 'If property is given to a man for his life, 
 the donor cannot take away the incidents to a life estate.' ' 
 " There are two propositions," continues the learned 
 judge, " to be considered as arising on the face of this 
 will as applicable to the facts stated: (i) Does the true 
 construction of the will bring it within that class of cases, 
 the provisions of which on this point are void under the 
 principle above stated? and (2), If so, is that principle to 
 be the guide of a court of the United States sitting in 
 chancery?" After reviewing the English authorities, the 
 opinion continues : " Conceding to its fullest extent the 
 doctrine of the English courts, their decisions are all 
 founded on the proposition that there is somewhere in the 
 instrument which creates the trust a substantial right, a 
 right which the appropriate court would enforce, left in 
 the bankrupt after his insolvency, and after the cesser of 
 the original and more absolute interest conferred by the 
 earlier clauses of the will. This constitutes the dividing 
 line in the cases which are apparently in conflict. Apply- 
 ing this test to the will before us, it falls short, in our 
 opinion, of conferring any such right on the bankrupt. 
 Neither of the clauses of the provisos contain anything 
 more than a grant to the trustees of the purest discretion 
 to exercise their power in favor of testatrix's sons. It 
 would be a sufficient answer to any attempt on the part of 
 the son in any court to enforce the exercise of that dis- 
 
 ! 18 Vea. -i-U. For variations of the & M. 197; Graves v. Dolphin, 1 Sim. 
 
 English rule see Be Coleman, 39 Ch. 66 ; Green v. Spicer, Taml. 396 ; Jos- 
 
 Div. 448, 452 ; Barton v. Briscoe, Jac. selyn v. Josselyn, 9 Sim. 63; Lord v. 
 
 603 ; Woodmeeton v. Walker, 2 Russ. Bunn, 2 Y. &C. C. C. 98.
 
 §364 
 
 NICHOLS V. EATON. 
 
 
 cretion in his favor, that the testatrix has in express term 1 
 said that such exercise of this discretion is not 'in an\ 
 manner obligatory upon them,' -- words repeated in both 
 these clauses. To compel them to pay any of this in< ome 
 to a son after bankruptcy, or to his assignee, is to mak 
 will for the testatrix which she never made ; and to do it 
 by a decree of a court is to substitute the discretion oi 
 the chancellor for the discretion of the trustees, in whom 
 alone she reposed it." Thus far we cannot but consider 
 the case as correctly reasoned and decided, since a gift <>| 
 a life estate or interest, with a proviso that it shall go 
 over to a third person upon alienation, voluntary or 
 involuntary, by the life tenant, is considered valid. We 
 can formulate no well-founded objection to such a trans- 
 action. Probably the earliest case in which the point is 
 so held is Lockyer v. Savage, 1 decided in 1773, but the 
 question seems now to be no longer a matter of disput 
 
 1 2 Stra. 947. 
 
 •Shee v. Hale, 13 Ves. Jr. 404; 
 Cooper v. Wyatt, 5 Madd. 482 ; Mar- 
 tin v. Margham, 14 Sim. 230 ; Roch- 
 ford v. Hackman, 9 Hare 475 ; Bran- 
 don v. Aston, 2 Y. & C. N. R. 24 : Re 
 Edgington's Trusts, 3 Drew 202 ; 
 Manning v. Chambers, 1 DeG. & Sin. 
 282 ; Carter v Carter, 3 Kay & J. 
 617 ; Barnett v. Blake, 2 Dr. & Sm. 
 117 ; Re Muggeridge's Trusts, John- 
 son 625 ; Sharp v. Cosserat, 20 Beav. 
 470; Haswell v. Haswell, 28 Beav. 
 26 ; Dorsett v. Dorsett, 30 Beav. 256 ; 
 Townsend v. Early, 34 Beav. 23 ; 
 Freeman v. Bowen, 35 Beav. 17 ; 
 Montefiore v. Behrens, 35 Beav. 
 95 ; Oldham v. Oldham, L. R. 3 Eq. 
 404 ; Roffey v. Bent, L. R. 3 Eq. 759 : 
 Craven v. Brady, L. R. 4 Eq. 209, 
 L. R. 4 Ch. App. 296; In re Am- 
 herst's Trusts, L. R. 13 Eq. 464; Bill- 
 son v. Crofts, L. R. 15 Eq. 314 ; Ex 
 parte Eyston, 7 Ch. D. 145 ; Caul- 
 
 field v. Maguire, 5 Ir. Ch. 78 ; Nichols 
 v. Eaton, 91 U. S. 716; BramhaJJ v. 
 Ferris, 14 N. Y. 41; Emery \. Van 
 Syckel, 17 N. J. Eq. 564, cited in 
 Gray's Restraints on Alienation 
 Where a man settled Ids property 
 upon himself for life, or until be 
 should become a bankrupt or insolv- 
 ent, and after Ins death, bankruptcy 
 or insolvency, in trust for lii-> wife 
 and children, and the settlor being in 
 solvent assigned his property to trus 
 tees for the benefit of creditors, it 
 was held that the trust was void as 
 against the assignee. In re Casey's 
 Trusts, 4 Irish Ch. 347. A bond pay- 
 able to trustees for the benefit "i a 
 wife on bankruptcy of the obligor is 
 not good. Ex paid Hill, l Cooke'e 
 Bkr. Law 228; Ex parte Bennet, l 
 Cooke's Bkr. Law 228 ; In re Murphy. 
 1 Sch. & Lef. 44 ; Ex parte Taaffe, I 
 Glyn& J. 110.
 
 648 NICHOLS V. EATON. § 365 
 
 § 365- The dictum in Nichols v. Eaton. — -The court, how- 
 ever, seemed disinclined to limit the discussion to the ques- 
 tions before it. The controverted doctrine against which 
 we complain is declared to be a dictum, for the court says: 1 
 " We have indicated our views in this matter rather to 
 forestall the inference, that we recognize the doctrine 
 relied on by appellants, and not much controverted by 
 opposing counsel, than because we have felt it necessary 
 to decide it." The opinion adds that the lack of time has 
 not "permitted any further examination into the decisions 
 of the State courts." Even the successful counsel did 
 not argue in favor of, and manifestly did not believe in 
 the advanced positions taken by the court. These posi- 
 tions were not necessary to gain his case. Referring to 
 the implication in the remark of Lord Eldon, already 
 quoted, the court were unable to see that the power of 
 alienation was a necessary incident to a life estate in real 
 property, or that the rents and profits of real property, 
 and the interest and dividends of personal property, might 
 not be enjoyed by an individual without liability for his 
 debts attaching as a necessary incident to such enjoyment. 
 The statement is made that the English Chancery 
 doctrine hostile to spendthrift trusts " is comparatively 
 of modern origin." These obnoxious trusts certainly are 
 modern creations, and Chancery was loyally following 
 the common law in promptly declaring the estate of 
 the beneficiary therein alienable and liable for debts. 
 The ruling of Chancery was not "ingrafted" upon the 
 common law as stated in Nichols v. Eaton ; it followed 
 it. 2 The opinion continues : " Nor do we see any reason, 
 in the recognized nature and tenure of property and its 
 transfer by will, why a testator who gives, who gives 
 without any pecuniary return, who gets nothing of prop- 
 erty value from the donee, may not attach to that gift 
 
 • 91 U. S. 729. 8 See Gray on Restraints, § 256.
 
 § 3 6 5 NICHOLS V. EATON. 
 
 the incident of continued use, of uninterrupted benefil of 
 the gift, during the life of the donee. Why a parent, or 
 one who loves another, and wishes to use his own prop- 
 erty in securing the object of his affection as far as 
 property can do it, from the ills of life, the vicissitudes ol 
 fortune, and even his own improvidence, or incapacity for 
 self-protection, should not be permitted to do so, is not 
 readily perceived." In other words vagabond spend 
 thrifts are, with infants and lunatics, to be favored with 
 special protection. But the infant cannot use his pro- 
 tection as a sword; if he does the protection is forfeited ; 
 while the beneficial contracts of a lunatic are binding 
 upon his estate. The spendthrift, on the other hand, 
 may with impunity use the exemption of his trust income 
 as a rapier. We lodge our protest not against provision 
 being made for " the ills of life," or " improvidence," or " in- 
 capacity " of the object of the donor's affection, but against 
 raising barrieis for the protection of the donee from the 
 righteous wrath of the creditor whom he has wronged. 
 If the spendthrift enjoys the comforts of income, so does 
 the creditor whose property he has taken. If the spend- 
 thrift has children dependent upon him, so has the 
 creditor. Is it a wise public policy to allow individuals 
 to practically create disabilities in cases where the general 
 policy of the law has raised none, and to devise trust 
 schemes to enable worthless insolvents to elude the pay- 
 ment of righteous claims ? Should we allow a donor to 
 cover the worthless object of his regard with an asbestos 
 blanket which judicial writs cannot penetrate. The opinion 
 argues that the only ground on which a spendthrift trust 
 is against public policy "is that it defrauds the creditors 
 of the beneficiary." This is scarcely correct. Public 
 policy is, or should be, hostile to inalienable estates, 
 whether legal or equitable, and opposed to repugnant 
 conditions that hamper property; hostile to properu
 
 650 NICHOLS V. EATON. § 365 
 
 rights divested of property responsibilities ; hostile to the 
 creation of unnecessary disabilities to protect people sui 
 juris ; hostile to exemptions which protect more than the 
 simple necessaries of life ; hostile to combinations that 
 divest insolvency of its sting. The cases cited in support 
 of the views of the court l were chiefly from Pennsylvania, 8 
 and closed with the well-known and unfortunate New 
 York case of Campbell v. Foster. 3 This authority, as we 
 have already seen, 4 contains a dictum to the effect that 
 the interest of a beneficiary in a trust fund created by a 
 person other than the debtor, is not available to creditors, 
 but, as heretofore shown, 5 this dictum is expressly 
 repudiated and exploded by Rapallo, J., in delivering the 
 opinion of the New York Court of Appeals in Williams 
 v. Thorn, 6 and the principle in support of which the case 
 is cited in Nichols v. Eaton has been proved over and 
 over aeain never to have been the law of that State. 
 
 Nichols v. Eaton embodied a dangerous and startling 
 dictum, the influence of which is spreading like the black 
 plague. It refused to recognize or follow the law of the 
 State 7 where the appeal originated, 8 and repudiated 
 
 1 Leavitt v. Beirne, 21 Conn. 1; Wood, 42 Hun (N. Y.) 636 ; Spindle v. 
 
 Nickell v. Handly, 10 Gratt. (Va.) Shreve 111 U. S. 546, 4 S. C. Rep. 522 ; 
 
 336; Pope's Ex'rs v. Elliott, 8 B. Andrews v. Whitney, 82 Hun (N. Y.) 
 
 Mon. (Ky.) 56. 123, 31 N. Y. Supp. 164 ; Bunnell v. 
 
 ■' Fisher v. Taylor, 2 Rawle (Pa.) Gardner, 4 App. Div. (N. Y.)322, 88 
 
 33; Holdship v. Patterson, 7 Watts N. Y. Supp. 569 ; McEvoy v. Applehy, 
 
 (Pa.) 547; Shankland's Appeal, 47 Pa. 27 Hun (N. Y.) 44. See Tolles v. 
 
 St. 113; Ashhurst v. Given, 5 W. & Wood, 99 N. Y. 616, 1 N. E. Rep. 251, 
 
 S. (Pa.) 323 ; Brown v. Williamson, 16 Ahb. N. C. (N. Y.) 1, and the col- 
 
 36 Pa. St. 338; Still v. Spear, 45 Pa. lection of eases in the notes . 
 
 St. 168. See § 368. ' Local decisions on legal or equit- 
 
 3 35 N. Y. 361. See Cutting v. Cut- able property rights will be fol- 
 ting, 86 N. Y. 546. lowed in Federal tribunals. Orvis 
 
 4 See §§ 45, 360. v. Powell, 98 U. S. 176; Lloyd v. 
 6 See §§45, 360. Fulton, 91 U. S. 479; Brine v. Ins. 
 6 70 N. Y. 270 ; 2d Appeal, 81 N. Y. Co., 96 U. S. 627. 
 
 381,44 N. E. Rep. 169; Wetmore v. 8 Tillinghast v. Bradford, 5 R. 1. 
 
 Wetmore, 149 N. Y. 520 ; Kilroy v. 205.
 
 § 3^5 NICHOLS V. EA'loN. 
 
 the settled English rule. 1 It revives in a measure 
 the principle of the objectionable statute 1 )<• Donis 
 which was practically superseded by Taltarum in 
 
 1472. Are we to be turned back to the thirteenth century 
 rule in which family pride and military oppression v. 
 rampant ? If the question whether or not it was permissible 
 aside from the rules of law establishing the tenure by 
 which property is held and transferred, to allow a debtor 
 to enjoy a right or interest in property free from the claims 
 of creditors, were an open one, we should certainly answer 
 that popularly speaking such a policy was neither judi- 
 cious, safe nor wise. 3 This conclusion is not necessarily 
 rested wholly upon the theory that such a form of \> 
 ing property in a debtor is a fraud upon creditors, but 
 rather upon the idea that property, by the rules of law. 
 should include not only the right of enjoyment, but also 
 the right of alienation and the incident of liability for 
 debts. While it is true that the owner of property may, 
 while he owns it, use it as he likes, yet he should not be 
 permitted to limit or control its use after he parts with 
 it 4 by creating an income for a spendthrift which in its 
 power to confer enjoyment upon the beneficiary is, in gen- 
 eral essentials, much the same as a property right, but 
 which the beneficiary need not guard or protect by keep- 
 ing his obligations or respecting the rights of his fellow 
 men, since the income cannot be touched or taken from 
 him. These trust estates and incomes are, in the opinion, 
 likened to statutory exemptions; the analogy is mis- 
 takenly considered perfect ; the creditor, it is said, has no 
 right to look to either of these sources for satisfaction of 
 his claim. We challenge the justness of the analogy and 
 question the correctness of the rule sought to be formu- 
 lated from it. It must have been thoughtlessly employed. 
 
 1 Brandon v. Robinson, 18 Ves. 433. 3 See § 360. 
 
 3 12 Ed. 4, 19 PI. 25. 4 See 10 Am. Law Rev. 595.
 
 652 NICHOLS V. EATON. § 365 
 
 Statutory exemptions are trivial in value ; they do not 
 clothe the debtor with indicia of wealth, or furnish him 
 with comforts or luxuries while his creditors remain 
 unpaid It would be inhumane to permit the creditor to 
 take the insolvent's clothing from his back, the food from 
 his table or the bed from his house. It is equally against 
 a wise public policy to deprive the professional man of his 
 library, the mechanic of his tools, or the teamster of his 
 horses, for by so doing the insolvent would be pauper- 
 ized and perhaps rendered a public charge, and the possi- 
 bility of repairing his ill-fortune by future industry irre- 
 trievably lost. These guarded exemption statutes, so uni- 
 versal in their operation, reflect the charitable sentiments 
 of a noble and generous people, and exhibit a willingness 
 on the part of the law-makers to extend a protecting hand, 
 in a limited way, to unfortunate struggling insolvents by 
 enabling them to work and to restore their fallen fortunes 
 unmolested ; not by protecting them in a life of opulent 
 idleness. We deny that the kindly spirit which inspired 
 this humane and necessary legislation can be tortured or 
 perverted so as to subserve the purpose of shielding vaga- 
 bond spendthrifts from the remedies of their creditors 1 
 
 1 In Spindle v. Shreve, 9 Biss. 199, could be held for the benefit of the 
 200, 4 Fed. Rep. 136, the will con- creditors; or whether it was an estate 
 tained this provision: "One-half of which was to be held for his personal 
 each share (which half I wish to be benefit for life, and over which he had 
 income-paying real estate) I desire to no power or control, and which could 
 be set apart and conveyed to a trustee, not go for the benefit of creditors. I 
 to be held for the use and benefit of have come to the conclusion," con- 
 each child during his or her life, and tinues Drummond, J., "that under 
 then descend to his or her heirs, with- the provisions of this will there was no 
 out any power or right on the part of estate which passed to the assignee, 
 said ctyld to encumber said estate, or but that the property in Chicago is to 
 anticipate the rents thereof." One of be held by the trustee to whom it was 
 the children became a bankrupt, and conveyed by the executor, for the Den- 
 tin- question presented upon a bill filed efit of the son during his life, and that 
 by his assignee was whether this child the rents and profits of the estate are 
 ' ' had such an interest in this property to be paid over to him personally, and 
 that it passed to the assignee, and so that he has no power to transfer any
 
 § 365 NICHOLS V. EATON. 
 
 In Mississippi the court says : " Our statutes upon the sub- 
 ject of exemptions indicate a clear public policy that 
 exemption from personal pauperism is of greater concern 
 than the rights of creditors." ' This is true as regards 
 mechanics' tools, simple household essentials and similar 
 exemptions, but trust incomes are not within the spirit. 
 letter or equity of these statutes. The analogy is being 
 abandoned and the exemption of trust incomes justified 
 upon the ground that the donor of the trust may do as he 
 pleases with his money. But is it wise to permit him in 
 so doing to violate public policy; to attach repugnant 
 conditions to equitable estates, to create funds which con- 
 fer the comforts of wealth divested of its responsibilities ; 
 to put creditors out of the category of the favored class ; 
 to create estates that are exempt from judicial writs ; and to 
 control the execution of these extraordinary trusts from 
 the tomb ? Is it not wiser that the donor's power to dis- 
 pose of his wealth should be regulated by reason and 
 made to conform to a wise public policy ? 
 
 interest which he has in the estate so by creditors." See Spindle v. Shreve, 
 
 as to defeat the provisions made in 111 U.S. 547. It is said in New Jei 
 
 the will. This will is attacked on the sey that the jurisdiction of the Court 
 
 ground that the provision made for the of Chancery in reaching property 1 >f .1 
 
 son is contrary to public policy, and judgment-debtor does not extend to 
 
 is, therefore, inoperative and void. I trust properly where the trusl has 
 
 hardly think the authorities warrant been created by some person other 
 
 that conclusion, and, if they do not, than the debtor. Hence where a mum 
 
 then the only question is, What is the was left to executors in trusl to 
 
 legal effect of this provision in the will, pay the income and such part of the 
 
 and what was the testator's intention principal as the cestui que trust Bh< Mild 
 
 in relation to the estate which was to wish, to her, and she requested the 
 
 be held by the trustee? The author- trustees to invest the fund in a farm, 
 
 ities collected in the case of Nichols v. it was held that such farm could not 
 
 Eaton, 91 U. S. 716, show that it was be reached by a creditor of the ,•, stui 
 
 competent for the testator to make que trust. Lippincott v. Evens. 
 
 such a provision as this, namely: to J. Eq. 553. See Easterly v. Keney, 
 
 declare by his will that his estate, or 36 Conn. 18. 
 
 any portion of it, might be held for a 'Leigh v. Earrison, 69 Miss 928, 
 
 child's sole benefit during life, and in 934, 11 So. Hep. 604 
 such a wav that it could not be readied
 
 654 THE CORRECT RULE. § 366 
 
 §366. The correct rule. — The true rule should be that 
 '* whatever a man can demand from his trustees, that his 
 creditors can demand from him." 1 In Tillinghast v. 
 Bradford, 2 it appeared that the devise was to T. in trust 
 to pay the income to H. for life ; anticipation or 
 payment to assigns was prohibited, the income being 
 intended for the sole and separate use of H. An assignee 
 of H. for the benefit of creditors was awarded the income 
 for the life of H. The court said: "This has been the 
 settled doctrine of a court of chancery, at least since 
 Brandon v. Robinson, 3 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. 
 Certainly property available for the purposes of pleasure 
 or profit should be also amenable to the demands 
 of justice." 4 In Bramhall v. Ferris, 6 Comstock, J.' 
 observed that if a bequest is given "absolutely for life, 
 with no provision for its earlier termination, and no 
 limitation over in the event specified, any attempt of 
 the testator to make the interest of the beneficiary 
 inalienable, or to withdraw it from the claims of creditors, 
 would have been nugatory. Such an attempt would be 
 clearly repugnant to the estate in fact devised or 
 bequeathed, and would be ineffectual for that reason as 
 well as upon the policy of the law." 6 And where trustees 
 held property with power to apply such portion of it as 
 
 1 Gray on Restraints, § 166. Com- Eaton, 91 U. S. 716, came up on ap- 
 
 pare Parsons v. Spencer, 83 Ky. 305 ; peal from the State in which Tilling- 
 
 Smith v. Towers, 69 Md. 103, 14 Atl. hast v. Bradford, 5 R. I. 205, was 
 
 Rep. 497; 15 Id. 92. decided. 
 
 ! 5R. I . 205. s 14 N. Y. 41. 
 
 l v Ves. 429. « Citing Blackstone Bank v. Davis, 
 
 4 Sec Pace v. Pace, 73 N. C. 119; 21 Pick. (Mass.) 42 : Hallett v. Thonip- 
 
 Bailie v. McWhorter, 56 Ga. 183; eon, 5 Paige (N. Y.) 583; Graves v. 
 
 Easterly v. Keney, 36 Conn. 18. It Dolphin, 1 Sim. 66; Brandon v. Rob- 
 
 Bhould be noted that Nichols v. Lnson, 18 Ves. 429.
 
 § 3 6 7 BROADWAY BANK V. ADAMS. 
 
 
 they saw fit to the education and maintenance ol a bene 
 ficiary until he should reach twenty-five years, and then 
 to convey the principal with all accretions to him, the 
 power being given to the trustees in their discretion to 
 convey the estate to the beneficiary before he was tw< 
 five years of age, it was held that the beneficiary's inl 
 est was liable for his debts. 1 
 
 But what are we to expect next when the courts declare 
 that "large masses of property are, in pursuance of a 
 public policy, finding expression in legislation, exempt 
 from liability for debts?" 2 And what are we to expect 
 when the courts of a State like Massachusetts incline to 
 hold that equitable rights can be exempted from tin- 
 process of creditors by a declaration to that effect con- 
 tained in the deed or will ? 
 
 §367. Broadway National Bank v. Adams. — We will 
 next notice an important case in Massachusetts — Broad- 
 way National Bank v. Adams, 3 another pillar in the tem- 
 ple of spendthrift trusts. The object of the bill was to 
 reach and apply to the payment of the plaintiff's claim 
 the income of a trust fund created for the debtor's 
 benefit by the will of his brother. Briefly the will gave 
 $75,000 to executors, in trust, to pay the net income to 
 the debtor semi-annually during his natural life, the pay- 
 ments to be made personally or upon his order or 
 receipt in writing, " in either case free from the inter- 
 ference or control of his creditors, my intention being 
 
 'Daniels v. Eldredge, 125 Mass. Massengill, 86 Tenn. 81, 5 S. W. Rep. 
 
 356. See Havens v. Heal}% 15 Barb. 719; Roberts v. Stevens, s i M 
 
 (N. Y.) 296. 24 Atl. Rep. 873, and cases cited; 
 
 3 Jourolmon v. Massengill, 86 Term. Smith v. Towers, 69 M.I. 84,14 Ail. 
 
 81, 104, 5S. W. Rep. 719. Rep. 497, 15 [d. 92; Garland v. Oar- 
 
 3 133 Mass. 170. See Billings v. land, 87 Va. 703, 13 S. E. Rep 478; 
 
 Marsh, 153 Mass. 311, 26 N. E. Rep. Leigh v. Harrison, 69 Miss. 
 
 1000; Wemyss v. White, 159 Mass. So. Rep. 604. 
 484, 34 N. E. Rep. 718; Jourolmon v.
 
 656 BROADWAY BANK V. ADAMS. § 367 
 
 that the use of said income shall not be anticipated by 
 assignment." The income after the debtor's death was 
 to go to his wife and children, and upon the death or 
 remarriage of the wife, the principal and accumulations 
 were to be divided among the children. Manifestly the 
 intention of the testator was that the income should be 
 free from the claims of creditors, and that the courts 
 should be unable to compel the trustee to divert the income 
 unless the provisions and intention were unlawful. The 
 court observe at the outset that " the question whether 
 the founder of a trust can secure the income of it to the 
 object of his bounty, by providing that it shall not be 
 alienable by him or be subject to be taken by his cred- 
 itors, has not been directly adjudicated " in Massachu- 
 setts, but say that the tendency of the decisions has been 
 in favor of such a power in the founder. 1 The reason 
 of the rule that a restriction upon the power of aliena- 
 tion is void because it is repugnant to the grant, is said 
 not to apply to the case of a transfer of the property in 
 trust, as by the creation of the trust the property passes 
 to the trustee with all its incidents and attributes unim- 
 paired. The trustee ''takes the whole legal title to 
 the property, with the power of alienation ; the cestui 
 que trust takes the whole legal title to the accrued 
 income at the moment it is paid over to him. Neither the 
 principal nor the income is at any time inalienable." It 
 is conceded by the court that, from the time of Lord 
 Eldon, the rule has prevailed in the English Court of 
 Chancery, to the effect that when the income of a trust 
 estate is given to any person (other than a married 
 woman) for life, the equitable estate for life is alienable 
 by, and liable in equity to the debts of, the cestui que 
 
 Citing Braman v. Stiles, 2 Pick. Mass. 425; Ball v. Williams, 120 
 160; Perkins v. Bays, 3 Gray Mass. 344; Sparhawk v. ("loon, T2."> 
 Mass.i 406; RuBseU v. Grinnell, lOo Mass. 263.
 
 § 367 BROADWAY BANK V. ADAMS. 657 
 
 trust, and that this quality is so inseparable from the 
 estate that no provision, however express, which does 
 not operate as a cesser or limitation of the estate itself, 
 can protect it from his debts. 1 The English rule, the 
 court observes, has been followed in some of the American 
 cases, 2 while other courts " have rejected it, and have 
 held that the founder of a trust may secure the benefit of 
 it to the object of his bounty, by providing that the 
 income shall not be alienable by anticipation, nor subject 
 to be taken for his debts." 3 Morton, C. J., said : " The 
 founder of this trust was the absolute owner of his prop- 
 erty. He had the entire right to dispose of it, either by 
 an absolute gift to his brother, or by a gift with such 
 restrictions or limitations, not repugnant to law, as he saw 
 
 fit to impose We do not see why the founder of a 
 
 trust may not directly provide that his property shall go 
 to his beneficiary with the restriction that it shall not be 
 alienable by anticipation, and that his creditors shall not 
 have the right to attach it in advance, instead of indirectly 
 reaching the same result by a provision for a cesser or a 
 limitation over, or by giving his trustees a discretion as to 
 paying it. He has the entire jus disponendi, which imports 
 that he may give it absolutely, or may impose any restric- 
 tions or fetters not repugnant to the nature of the estate 
 which he gives. Under our system creditors may reach 
 all the property of the debtor not exempted by law, but 
 they cannot enlarge the gift of the founder of a trust, and 
 take more than he has given." 
 
 'Brandon v. Robinson, 18 Ves. & B. Eq. (N. C.) 480; Mebane v. 
 
 429 ; Green v. Spicer, 1 Russ. & Myl. Mebane, 4 Ired. Eq. (N. C.) 131. 
 395 ; Rochford v. Hack man, 9 Hare 3 Citing Holdsbip v. Patterson, 7 
 
 475 ; Trappes v. Meredith, L. R. 9 Watts (Pa.) 547 ; Shankland's Appeal, 
 
 Eq. 229; Snowdon v. Dales, 6 Sim. 47 Pa. St. 113; Rife v. Geyer, 59 Pa. 
 
 524 ; Rippon v. Norton, 2 Beav. 63. St. 393 ; White v. White, 30 Vt. 338 ; 
 
 2 Tillinghast v. Bradford, 5 R. I. Pope's Ex'rs v. Elliott, 8 B. Mon. 
 
 205; Heath v. Bishop, 4 Rich. Eq. (Ky.)56; Nichols v. Eaton, 91 U. S. 
 
 (S. C.) 46 ; Dick v. Pitchford, 1 Dev. 716,; Hyde v. Woods, 94 U. S. 523. 
 42
 
 658 SPREAD OF THE DOCTRINE. § 367a 
 
 This is probably one of the most advanced statements 
 of the objectionable doctrine, though Claflin v. Claflin 1 
 in some respects outranks it. Reference is here made to 
 cases like Broadway National Bank v. Adams, and to the 
 dictum in Nichols v. Eaton, now much quoted and relied 
 upon, not as embodying salutary rules or wise principles 
 of law, but rather to record a protest against the existence 
 and growth of a class of cases of which these have been 
 the forerunners. The creation of an aristocracy of prodi- 
 o-als who can dwell in luxury and defy their creditors, 
 brings the administration of justice into disrepute, and has 
 a demoralizing influence upon industrious people. The 
 creditor, as we have said, is unjustly deprived of the power 
 to compel his debtor to forego the comforts and luxuries of 
 wealth, or to feel the privations and inconveniences inci- 
 dent to insolvency. The tendency of these cases must 
 be checked by legislation, or the sober second thought of 
 the courts ; the doctrine will not be indefinitely tolerated 
 by the American people, for it is both undemocratic and 
 not in keeping with the spirit of American institutions.^ 
 
 § 367a. Spread of the doctrine. — None of the defects and 
 inaccuracies instanced moved the courts to re-examine the 
 dictum in Nichols v. Eaton. It has spread in all directions, 
 and some States have reversed former well-decided cases 
 and hastened to adopt the unfortunate conclusions of the 
 dictum. Smith v. Towers, 2 in Maryland, is one of the most 
 startling and instructive of the cases following Nichols v. 
 Eaton, 3 and Broadway National Bank v. Adams, 4 and 
 .departing from the old landmarks. The devise was made to 
 a trustee to pay the income into the debtor's "own hands, 
 
 L49 Mass. 19, 30 N. E. Rep. 454. 452, '.) S. W. Rep. 785; Jourolmon v. 
 
 69 Md. 77. II At). Rep. 197, 15 I<1. Massengill, 86 Tenn. 81, 5 S. W. Rep. 
 
 92 : Maryland Grange A.gency v. Lee, 719; Garland v. Garland, *7 Va. 75S, 
 
 72 Md L61, L9 All. Rep. ".34. 'Sees. P. 18 S. E. Rep. 478. 
 
 Barnes? Dow, 59 Vt. 530, 10 Atl. Rep. 91 U.S. 727. 
 
 258; Partridge v. Cavender. 9<> Mo. ' !:'.:{ M;iss. 170.
 
 § 367^ SPREAD OF THE DOCTRINE. 659 
 
 and not into another, whether claiming by his authority 
 or otherwise." On the debtor's demise the property was 
 given in fee to his children. The creditor's suit failed 
 to reach the debtor's interest in this income. Alvey, C. J., 
 filed a strong dissenting opinion which clearly sets forth 
 the arguments advanced against these obnoxious trusts. 1 
 In Connecticut the cases are not uniform. The court 
 employs this language in one decision : " All property 
 exempt by statute from attachment is within the excep- 
 tion ; so is ordinary trust property designed to secure a 
 maintenance for some unfortunate debtor ; so also the 
 income of trust property, where it is payable to the bene- 
 ficiary at the discretion of the trustee." ~ In Pennsyl- 
 vania it is said : " We do not approve of that portion of 
 the opinion of the learned court below in which it was 
 held that a married woman cannot make a valid spend- 
 thrift trust in favor of her husband. " 3 As will appear, 
 the decisions are in some confusion in that State. In 
 Wanner v. Snyder, 4 a charge upon the income was held 
 to exempt it from the attack of the creditors of the bene- 
 ficiary, and much the same position is assumed in West 
 Virginia. 5 North Carolina now leans somewhat against 
 alienations of equitable estates, 6 though some cases are 
 the other way. 7 The trust tendency shows itself a little 
 in Alabama, 8 though most of its cases follow the English 
 
 1 Compare Baker v. Keiser, 75 Md. 5 McClure v. Cook, 39 W. Va. 579, 
 338, 23 Atl. Rep. 735. 20 S. E. Rep. 612. 
 
 2 Tolland County Ins. Co. v. Under- s Monroe v. Trenholm, 112 N. C. 
 wood, 50 Conn. 493. But compare 634. 17 S. E. Rep. 439; Kirby v. 
 Farmers' & M. Savings Bank v. Boyette, 116 N. C. 165, 21 S. E. Rep. 
 Brewer, 27 Conn. 600; Tarrant v. 697 ; S. c. again 118 N. C. 244, 24 S. E. 
 Backus, 63 Conn. 277, 287, 28 Atl. Rep. 18. 
 
 Rep. 46 : Donalds v. Plumb, 8 Conn. 7 See Mebane v. Mebane, 4 Ired. 
 
 447 ; Easterly v. Keney, 36 Conn. 18. Eq. (N. C.) 131 ; Dick v. Pitchford, 1 
 
 3 Wanner v. Snyder, 177 Pa. St. Dev. & Bat. Eq. (N. C.) 480; Pace v. 
 208, 35 Atl. Rep. " 604. See § 368 ; Pace, 73 N. C. 119. 
 
 Rife v. Geyer, 59 Pa. St. 393. s Moses v. Micou, 79 Ala. 564. Cotn- 
 
 4 177 Pa. St. 208. pare Bell v. Watkins, 82 Ala. 512.
 
 66o 
 
 SPREAD OF THE DOCTRINE. 
 
 §367^ 
 
 rule. 1 The new doctrine has been taken up in Vermont, 2 
 Missouri, 3 Tennessee, 4 Virginia, 5 Mississippi, 6 Indiana, 7 
 Delaware, 8 Massachusetts, 9 Illinois 10 and Maine. 11 Against 
 these trusts are Rhode Island, 12 New York prior to its 
 statutory policy, 13 and in a limited way under its statutory 
 policy, 11 South Carolina, 15 Georgia, 16 Ohio, 17 Kentucky, 18 
 though the decisions waver, 19 New Jersey but for its statu- 
 
 1 Jones v. Reese, 65 Ala. 134 ; Rob- 
 ertson v. Johnston, 36 Ala. 197. 
 
 8 Barnes v. Dow, 59 Vt. 530, 10 Atl. 
 Rep. 258. Compare White v. White, 
 30 Vt. 338. 
 
 3 Partridge v. Cavender, 96 Mo. 
 452, 9 S. W. Rep. 785 ; Jarboe v. Hey, 
 122 Mo. 349, 26 S. W. Rep. 968. Com- 
 pare Mcllvaine v. Smith, 42 Mo. 45 ; 
 Lackland v. Smith, 5 Mo. App. 153 ; 
 Pickens v. Dorris, 20 Mo. App. 1 . 
 
 4 Jonrolmon v. Massengill, 86 Tenn. 
 81, 5 S. W. Rep. 719. See Porter v. 
 Lee, 88 Tenn. 782, 14 S. W. Rep. 218. 
 Compare Turley v. Massengill, 7 Lea 
 (Tenn.) 353 ; Hooberry v. Harding. 3 
 Tenn. Ch. 677 ; s. c. on appeal, 10 Lea 
 (Tenn.) 392. 
 
 5 Garland v. Garland, 87 Va. 758, 13 
 S. E. Rep. 478. Compare Johnston v. 
 Zane, 11 Gratt (Va.) 552; Perkins v. 
 Dickinson, 3 Gratt (Va.) 355. 
 
 6 See Leigh v. Harrison, 69 Miss. 
 923. 
 
 1 See Thompson v. Murphy, 10 Ind. 
 App. 464, 37 N. E. Rep. 1094 ; Martin v. 
 Davis, 82 Ind. 38. 
 
 8 Gray v. Corbit, 4 Del. Ch. 135. 
 
 9 Broadway Nat'l Bank v. Adams, 
 188 Mass. 170; Billings v. Marsh, 153 
 Mass. 311. In Evans v. Wall, 159 
 Mass. 104. the court says: "The 
 general rule is that income may be 
 reached by a creditor, unless there is 
 something in the language of the in- 
 strument creating the trust clearly 
 showing an intention to the contrary 
 Sears v. Choate, 146 Mass. 395, 398, 
 15N. E. Rep. 786; Maynard v. Cleaves, 
 
 149 Mass. 307, 308, 21 N. E. Rep. 
 376." 
 
 10 Steib v. Whitehead, 111 111.247. 
 See Springer v. Savage, 143 111. 301, 
 32 N. E. Rep. 520. 
 
 "Roberts v. Stevens, 84 Me. 325, 
 24 Atl. Rep. 873. In Maine a guardian 
 may be appointed for a spendthrift. 
 Young v. Young, 87 Me. 44, 32 Atl. 
 Rep. 782. 
 
 12 Tillinghast v. Bradford, 5 R. I. 
 205. Compare Ryder v. Sisson, 7 R. I. 
 341 ; Stone v. Westcott, 29 Atl. Rep. 
 833. 
 
 13 Bryan v. Knickerbacker, 1 Barb. 
 Ch. (N. Y.) 409 ; Havens v. Healy, 15 
 Barb. (N. Y.) 296 ; Bramhall v. Ferris, 
 14 N. Y. 41. 
 
 14 See § 367b. 
 
 15 Heath v. Bishop, 4 Rich. Eq. (S. 
 C.) 46. Compare Wylie v. White, 10 
 Rich. Eq. (S. C.) 294. 
 
 18 Bailie v. McWhorter, 56 Ga. 183. 
 Compare Kempton v. Hallowed, 24 
 Ga. 52; Mathews v. Paradise, 74 Ga. 
 523. 
 
 11 Wallace v. Smith, 2 Handy (Ohio) 
 79 : Hobbs v. Smith, 15 Ohio St. 419 ; 
 Stanley v. Thornton, 7 Ohio C. C. 455. 
 
 18 Flournoy v. Johnson, 7 B. Mon. 
 ( Ky.) 693 ; Cosby v. Ferguson, 3 J. J. 
 Marsh. (Ky ) 264 ; Eastlake v. Jordan. 
 3 Bibb (Ky.) 186: Samuel v. Salter, 3 
 Met. (Ky.)»59; Ernst v. Sliinkle, 95 
 Ky. 608, 26 S. \V. Pep. 813; Knefler 
 v. Shreve, 78 Ky. 297, 
 
 19 White v. Thomas, 8 Bush (Ky.) 
 661 : Pope v. Elliott, 8 B. Mon. (Ky.) 
 56.
 
 § 367b NEW YORK RULE. 66 1 
 
 tory policy, 1 such policy exempting income unless it 
 reaches $4,ooo, 2 Arkansas 3 and Wisconsin.* These 
 trusts have certainly gained a stronger footing since our 
 last edition. The Federal decisions are not to be recon- 
 ciled and are naturally overshadowed by Nichols v. 
 Eaton, 5 though Nichols v. Levy, 6 where the English 
 rule is stated, is sometimes cited. 
 
 § 367b. New York rule as to trust income. — Cases 
 arising outside the provisions of the Revised Statutes of 
 New York favor the seizure of equitable interests. 7 The 
 statute provides that income " beyond the sum that may 
 be necessary for the education and support " of the bene- 
 ficiary shall be liable in equity for debts, and that the 
 beneficiary cannot assign his beneficial interest. 8 It has 
 already appeared, 9 that under these statutes surplus 
 income may be reached by a creditor's bill. 10 Kilroy v. 
 Wood, 11 in that State, has been sharply criticised because 
 it alludes to the debtor as " a gentleman of high social 
 standing, whose associations are chiefly with men of 
 leisure, and is connected with a number of clubs, with the 
 usages and customs of which he seems to be in harmony 
 both in practice and expenditure." But the court was, in 
 
 1 Hardenburgh v. Blair, 30 N. J. 15 Barb. (N. Y.) 296 ; Bramhall v. 
 Eq. 42 ; Halstead v. Westervelt, 41 Ferris, 14 N. Y. 44. 
 
 N. J. Eq. 100. Compare Force v. » See Tolles v. Wood. 99 N. Y. 616, 
 
 Brown, 32 N. J. Eq. 118 ; Frazier v. 1 N. E. Rep. 251. 
 
 Barnum, 4 C. E. Green (N. J.) 316 ; 9 See Chap. II. 
 
 Lippincott v. Evans, 35 N. J. Eq. 553. 10 Williams v. Thorn, 70 N. Y. 270, 
 
 2 Freeholders of Hunterdon v. 81 N. Y. 381 ; McEvoy v. Appleby, 27 
 Henry, 41 N. J. Eq. 388. Hun (N. Y.) 44 ; Tolles v. Wood, 99 
 
 3 Lindsay v. Harrison. 8 Ark. 302. N. Y. 616, 1 N. E. Rep. 251 ; Hallett 
 
 4 Bridge v. Ward, 35 Wis. 687 ; v. Thompson, 5 Paige (N. Y.) 583 
 Lamberton v. Pereles, 87 Wis. 449, 58 Craig v. Hone, 2 Edw. Ch. (N. Y.) 376 
 N. W. Rep. 776. But see Sumner v. Scott v. Nevius, 6 Duer (N. Y.) 672 
 Newton, 64 Wis. 210; 25 N.W. Rep. 30. DeCamp v. Dempsey, 10 N. Y. Civ. 
 
 5 91 U. S. 716. Pro. 210 ; McEwen v. Brewster, 17 
 
 6 5 Wall. 433. Hun (N. Y.) 223. 
 
 7 Bryan v. Knickerbacker, 1 Barb. " 42 Hun (N. Y.) 636. 
 Ch. (N. Y.) 409. See Havens v. Healy,
 
 662 SPENDTHRIFT TRUSTS. § 368 
 
 the language quoted, merely stating the claim of counsel, 
 for it adds that " it would seem that evidence might have 
 been adduced which would establish his ability to live 
 upon a smaller sum than the whole income," and regrets 
 that the plaintiff was so weak with his proofs. 1 The 
 range of the inquiry and the nature and extent of the 
 judgment impounding income is fully set forth in Wet- 
 more v. Wetmore.~ In New Jersey trust income beyond 
 $4,000 may be the subject of discovery in aid of 
 execution. 3 
 
 § 368. Spendthrift trusts in Pennsylvania. — It is common 
 to refer to Pennsylvania as the birthplace and stronghold 
 of the doctrine of spendthrift trusts. 4 Professor Gray 
 places the blame on Chief-Justice Gibson and adds : ' 4 The 
 interference of equity to compel people to pay their 
 debts seems to have moved the wrath of that sturdy com- 
 mon lawyer." '' Chief-Justice Agnew said, in Overman's 
 Appeal : 6 "It [a spendthrift trust] is exceptionable in its 
 very nature, because it contravenes that general policy 
 which forbids restraints on alienation and the non-pay- 
 ment of honest debts A trust to pay income for 
 
 life may last for the longest period of human existence, 
 and may run for seventy or eighty years. While the law 
 simply tolerates such a trust, it cannot approve of it as 
 contributing to the general public interest. Property tied 
 up for half a century contributes nothing to the general 
 
 1 See Estate of Hoyt, 12 N. Y. Civ. St. 113 ; Ashhurstv. Given, 5W.&S. 
 
 Pro. 308, 230; and compare Stow v. (Pa.) 323; Brown v. Williamson, 36 
 
 < Ihapin, 4 N. Y. Sup]). 496. Pa. St. 338 ; Still v. Spear, 45 Pa. St. 
 
 * 149 N. Y. 521 ; 44 N. E. Rep. 169. 168; Stambaugh's Estate, 135 Pa. 
 
 Laws N. J. 1880, p. 274. See Hal- St. 596, 19 Atl. Rep. 1058 ; Gliormley 
 
 stead v. Westervelt, 41 N. J. Eq. 100 ; v. Smith, 139 Pa. St. 584, 19 Atl. Rep. 
 
 Hunterdon Freeholders v. Henry, 41 135; Mehaffey's Estate, 139 Pa. St. 
 
 N.J. Eq. 283, 20 Atl. Rep. 1056. 
 
 4 See Fisher v. Taylor, 2 Rawle (Pa. ) 6 Gray on Restraints, § 219. 
 
 Holdship v. Patterson, 7 Watts '' 88 Pa. St. 276, 281. 
 :.H ; Shankland's Appeal, 47 Pa.
 
 § 368a POWERS. 663 
 
 wealth, while it is a great stretch of liberality to the owner- 
 ship of it to suffer it to remain in this anomalous state for 
 so many years after its owner has left it behind him. 
 Clearly it is against public interest that the property of an 
 after generation shall be controlled by the deed \gu. dead] 
 of a former period, or that the non-payment of debts 
 should be encouraged." x The case of Ghormley v. 
 Smith 3 seems to show a disposition to limit spendthrift 
 trusts to settlements made by a parent in favor of a child. 
 It is doubtful if such a limitation will stand in that State. 
 The court says that Brandon v. Robinson 3 is in part the 
 law of the State, and gravely says that "a person sui juris 
 could not settle his entire estate upon himself, free from 
 liability for debts." The cases applicable to these trusts 
 are in much confusion in Pennsylvania. The authorities 
 were started in the wrong direction partially by the lack 
 of equity jurisdiction in the early history of that State. 
 Even the proverbial Philadelphia lawyer could not deduce 
 from them any unbending rule. 4 Generally the creditor 
 is defeated in that State in pursuing income, though in a 
 measure each case is a law unto itself. The creation 
 of spendthrift trusts has conflicted with the rule against 
 restraints and repugnant conditions, and is not approved 
 by some of the judges. 
 
 § 368a. Powers— When not assets. — Elsewhere 5 the stat- 
 utory policy of New York State in effect removing pow- 
 ers from the category of assets for creditors 6 is considered 
 
 1 See Gray on Restraints, £ 234 . 19 Atl. Rep. 302; Goe's Estate, 146 
 
 2 139 Pa. St. 584, 592, 21 Atl. Rep. Pa. St. 431, 23 Atl. Rep. 383 ; Bark- 
 
 135. er*s Estate, 159 Pa. St. 518, 28 Atl. 
 
 3 18 Ves. 429. Rep. 365, 368 ; Wanner v. Snyder. 177 
 
 4 See Smeltzer v. Goslee, 172 Pa. St. Pa. St. 208, 35 Atl. Rep. 604. 
 
 298, 34 Atl. Rep. 44 ; Keyser's Appeal, 6 See § 40. 
 
 57 Pa. St 236; Cooper's Estate, 150 Pa. 6 See Cutting v. Cutting, 20 Hun 
 
 St. 576, 24 Atl. Rep. 1057; Hinkle's (N. Y.) 367, on appeal, 86 N. Y. 537; 
 
 Appeal, 116 Pa. St. 490, 9 Atl. Rep. Crooke v. County of Kings, 97 N. Y. 
 
 938; Beck's Estate, 133 Pa. St. 51, 457.
 
 664 powers. § 368a 
 
 and deplored. The same general principle of the exemp- 
 tion of powers from the process of creditors has been 
 introduced into Pennsylvania, 1 a State in which the courts 
 evince a tenacious disposition to shield equitable assets 
 from the attacks of creditors. 
 
 1 Commonwealth v. Duffield, 12 Pa. 306 ; s. c. under name of Swaby's Ap- 
 St. 277; King's Estate, 16 Phila. (Pa.) peal, 14 W. N. C. 553.
 
 CHAPTER XXIV. 
 
 BONA FIDE PURCHASERS— ACTUAL AND CON- 
 STRUCTIVE NOTICE — FRAUDULENT GRANTEES. 
 
 §369. Rights of bona fide purchasers. 
 
 370. Generality of the rule. 
 
 371. Mortgagee as bona fide pur- 
 
 chaser. 
 371a. Execution purchaser. 
 
 372. Without notice. 
 
 373. Kinds of notice. 
 
 374. Constructive notice of fraud. 
 
 375. ) 
 
 „ ' y Rule in Stearns v. Gage. 
 
 376a. Anderson v. Blood. 
 
 377. Carroll v. Hay ward— Actual be- 
 
 lief. 
 
 378. Parker v. Conner. 
 
 379 1 
 
 ' ! Facts sufficient to excite in- 
 
 380. r 
 
 381. j qUUT - 
 
 i 382. Actual belief. 
 
 383. Purchaser with notice. 
 
 384. Purchaser with notice from 
 
 bona fide purchaser. 
 384a. Possession as notice. 
 
 385. Fraudulent grantee as trus- 
 
 tee. 
 
 386. Title from fraudulent vendee. 
 
 387. Creditors of fraudulent gran- 
 
 tees. 
 
 388. Liability between fraudulent 
 
 grantees. 
 
 389. Fraudulent grantee sharing in 
 
 the recovery. 
 389a. Purchaser pendente lite. 
 
 § 369. Rights of bona fide purchasers. — As has been 
 observed, creditors have an equitable interest in the 
 property of their debtors, or in the means the latter have 
 of satisfying the creditors' demands, 1 which the law will, 
 under certain circumstances, enforce, since the insolvent's 
 property constituted the foundation and inducement of 
 the trust and credit. 2 But the interests of a bona fide 
 purchaser 3 of a debtor's property are superior to those of 
 
 Seymour v. Wilson, 19 N. Y. 418. 
 See Chap. II. 
 * Egery v. Johnson, 70 Me. 261. See 
 
 3 In Ricker v. Ham, 14 Mass. 141, 
 the court says : " The term bona fide, 
 as used in the law upon this subject, 
 means only that the purchase shall be 
 
 a real and not a feigned one." s. p. 
 Jones v. Light, 86 Me. 443, 30 Atl. 
 Rep. 71. One who purchases from 
 an assignee for the benefit of cred- 
 itors underavoid assignment may be 
 a purchaser for a valuable considera- 
 tion. Wilson v. Marion, 147 N. Y. 
 589, 42 N. E. Rep. 190. A bona fide
 
 666 
 
 BONA FIDE PURCHASERS. 
 
 369 
 
 creditors, 1 for the obvious reason that the former has not, 
 like a mere general creditor, trusted " to the personal 
 responsibility of the debtor, but has paid the considera- 
 tion upon the faith of the debtor's actual title to the 
 specific property transferred." 2 In such a case the inter- 
 ests of the general creditors are superseded or defeated 3 
 by the purchaser's superior equity. 4 It is merely a sub- 
 stitution of property. The value given or paid by the 
 purchaser has taken the place of the property which he 
 received. Hence the rights of a bona fide grantee who 
 has paid a full valuable consideration are protected, 5 
 though the grantor may have been actuated by a fraudu- 
 lent intention. 6 Still, as we have seen, a grantee is not 
 protected when he has not paid such a consideration, 
 
 purchaser from a fraudulent vendee 
 takes a good title. O'Neil v. Patter- 
 son & Co., 52111. A pp. 26. 
 
 1 Compare Valentine v. Lunt, 115 
 N. Y. 496, 22 N. E. Rep. 209, where 
 a bona fide purchaser for value from 
 a fraudulent vendee, held the title 
 against the defrauded vendor. 
 
 * Seymour v. Wilson, 19 N. Y. 417, 
 420 ; Holmes v. Gardner, 50 Ohio St. 
 175, 33 N. E. Rep. 644. See Frieden- 
 wald v. Mullan, 10 Heisk. (Tenn.) 
 229 ; Goshorn v. Snodgrass, 17 W. 
 Va. 717 ; Thames v. Rembert, 63 Ala. 
 561 : Collumb v. Read, 24 N. Y. 516 ; 
 Mansfield v. Dyer, 131 Mass. 200 ; 
 Comey v. Pickering, 63 N. H. 126 ; 
 Zoeller v. Riley, 100 N. Y. 102, 2 N. 
 E. Rep. 388; Simpson v. Del Hoy o, 
 94 N. V. 189 ; Paddon v. Taylor, 44 
 N. Y. 371 ; Lore v. Dierkes, 16 Abb. 
 N. C. (N. Y.) 47; Saunders v. Lee, 
 101 N. C. 3, 7 S. E. Rep. 590; Bishop 
 , . Stebbins, 41 Hun (N. Y.) 248. 
 
 'See Dorr v. Beck, 76 Hun (N. Y.) 
 R40 28 X. V. Supp. 206. 
 
 • in Zoeller v. Riley, 100 N. Y. 108, 
 2 N. E. Rep. 388, Earl, J., said : "A 
 debtor may dispose of his property 
 
 with the intent to defraud his cred- 
 itors and yet give a good title to one 
 who pays value and has no knowl- 
 edge of, and does not pai - ticipate in 
 the fraud. (2 R. S. 137, § 5 : Starin 
 v. Kelly, 88 N. Y. 418; Murphy v. 
 Briggs, 89 N. Y. 446 ; Parker v. Con- 
 ner, 93 N. Y. 118.)" It seems that 
 where the title of an innocent pur- 
 chaser is relied on he must positively 
 deny notice of the equitable rights of 
 another, although not specifically 
 charged. Seymour v. McKinstry, 106 
 N. Y. 230, 12 N. E. Rep. 348, 14 Id. 
 94. 
 
 5 See Hawkins v. Davis, 8 Baxt. 
 (Tenn.) 508 ; Zick v Guebert, 142 111. 
 154, 31 N. E. Rep. 601 ; Rindskoph v. 
 Kuder. 145 111. 607, 34 N. E. Rep. 484 ; 
 Carnahan v. McCord. 116 Ind. 67. 18 
 N. E. Rep. 177 ; Sipley v. Wass, 49 N. 
 J. Eq. 463, 24 Atl. Rep. 233. 
 
 ' Where a resulting trust is not 
 evidenced by anything of record, an 
 innocent bona fide purchaser without 
 notice will take the estate divested of 
 the trust. De Mares v. Gilpin, 15 Col. 
 76, 24 Pac. Rep. 568.
 
 § 369 BONA FIDE PURCHASERS. 667 
 
 though he may have acted in good faith. The two must 
 concur. 1 If no consideration has been given then there 
 has been no substitution of property. The amount of the 
 consideration is not necessarily material when the grantor 
 is solvent,^ but when he is insolvent the kind and amount 
 of consideration become material and important, even in 
 the absence of actual intent to defraud. Thus an agree- 
 ment to support an insolvent grantor may be a valuable 
 consideration, but it is not sufficient to uphold a convey- 
 ance as against prior creditors, 3 even though there may 
 have been no actual intent to defraud. 4 Persons receiving 
 a conveyance from a grantor for such a consideration 
 must see to it that the existing debts of the grantor are 
 paid, 5 and it is immaterial that the consideration com- 
 prises a present sum of money paid in addition to the 
 agreement for support, provided the money alone were 
 palpably inadequate. 6 
 
 Three things must concur to protect the title of the 
 purchaser. 7 (1) He must buy without notice of the bad 
 intent on the part of the vendor. (2) He must be a pur- 
 chaser for a valuable consideration ; and (3) He must 
 have paid the purchase money before he had notice of 
 
 1 Savage v. Hazard, 11 Neb. 327. 3 Rollins v. Mooers, 25 Me. 192-199. 
 
 9 N. W. Rep. 83 ; Danbury v. Robin- 4 Webster v. Withey, 25 Me. 326. 
 
 son, 14 N. J. Eq. 213. See §§ 15, 207. 5 Hapgood v. Fisher, 34 Me. 407. 
 
 In Keyser v. Angle, 40 N. J. Eq. 6 Sidensparker v. Sidensparker. 52 
 
 481, 4 Atl. Rep. 641, it appeared that a Me. 481. See Egery v. Johnson, 70 
 
 sister purchased land of a brother who Me. 261. 
 
 was in debt. She paid $50 cash and ' Dougherty v. Cooper, 77 Mo. 532 ; 
 gave her note for $650, which he held Herman v. McKinney, 47 Fed. Rep. 
 for four years though very needy. It 758. The purchaser is protected only 
 was held that if the sister had notice to the extent of actual payments made 
 of the fraud before she paid the note before he had notice of the fraud, tin- 
 she was not a bona fide purchaser, less he be liable on his contract in 
 even though she had no notice when excess of that amount. Wetmore v. 
 she took the deed. Woods, 62 Mo. App. 265 ; Riddell v. 
 
 5 Usher v. Hazeltine, 5 Me. 471 ; Munro, 49 Minn. 532, 52 N. W. Rep. 
 
 Hapgood v. Fisher, 34 Me. 407. 141.
 
 668 BONA FIDE PURCHASERS. § 369 
 
 the fraud. 1 Chief-Justice Marshall observes that "the 
 rights of third persons, who are purchasers without notice 
 for a valuable consideration, cannot be disregarded. 
 Titles, which, according to every legal test, are perfect, 
 are acquired with that confidence which is inspired by 
 the opinion that the purchaser is safe. If there be any 
 concealed defect, arising from the conduct of those who 
 had held the property long before he acquired it, of 
 which he had no notice, that concealed defect cannot be 
 set up against him. He has paid his money for a title 
 good at law ; he is innocent, whatever may be the guilt 
 of others, and equity will not subject him to the penalties 
 attached to that guilt. All titles would be insecure, and 
 the intercourse between man and man would be very 
 seriously obstructed if this principle be overturned." 2 In 
 a recent Minnesota case it is said that the burden of 
 rebutting the presumption of a fraudulent intent arising 
 from the continued possession of the property by the 
 vendor rests on the vendee as against creditors. The 
 court continued : " But there is no such burden resting 
 upon the vendee to show that the vendor was not impli- 
 cated in the fraud, because the fraudulent intent of the 
 vendor cannot legally affect the rights of a bona fide 
 purchaser for a valuable consideration and without notice. 
 It is sufficient if the vendee is innocent of any fraud, and 
 did not participate therein, and had no notice of the 
 fraudulent intent of the vendor." 3 Dillon, J., in Gardner 
 v. Cole, 4 said that " where the first conveyance originates 
 in a fraudulent purpose, and is without any consideration 
 
 'See Arnholt v. Hartwig, 73 Mo. pays for it is not entitled to protection 
 
 485 ; Bishop v. Schneider, 46 Mo. 472 ; as a bona fide purchaser. Jetton v. 
 
 Dixon v. Bill, 5 Mich. 408: Hedrick Tobey, 62 Ark. 84, 34 S. W. Rep. 531. 
 
 v. Strauss, 42 Neb. 485, 60 N. W. Rep. 3 Leqre v. Smith, 63 Minn. 26, 65 N. 
 
 9SJ8, \V. Rep. 121. See also Leach v. Flack, 
 
 « Fletcher v. Peck, 6 Cranch 133. 31 Hun (N. Y.) 605; Griffin v. Mar- 
 Manifestly one who purchases per- quardt, 21 N. Y. 121. 
 sonal property on credit and never 4 21 Iowa 205, 214.
 
 § 37° GENERALLY OF THE RULE. 669 
 
 of value, and the grantor remains in possession, and 
 claiming ownership, sells the property as his own to a 
 party who buys without actual notice of the prior deed 
 and pays value, the latter purchaser may avoid the prior 
 voluntary and fraudulent conveyance." 1 We have seen 
 that conveyances are void which are made to defraud 
 subsequent purchasers for a valuable consideration 2 Of 
 course, as we have seen, where it is found as matter of 
 fact that the purchase of the property was made by col- 
 lusion with the debtor, with the intent to hinder and 
 delay creditors, the purchaser has no equities against 
 such creditors even as regards the amount actually paid. 3 
 
 § 370. Generality of the rule. — A court of equity acts 
 only on the conscience of the party ; and if he has done 
 nothing that taints it, no demand can attach so as to give 
 jurisdiction. 4 The rule is not limited to cases where 
 conveyances are made in fraud of creditors, but applies 
 to cases in which the vendor has been swindled out of 
 his property by a vendee, for whenever the property 
 reaches the hands of a bona fide purchaser for value, the 
 rights and equities of the defrauded owner are cut off. 5 
 
 1 8ee Hurley v. Osier, 44 Iowa (546. little means, for an expressed con- 
 See note as to the rights of trans- sideration of $4,900, $800 being paid 
 ferees and others under conveyances in cash, $250 in a span of horses, and 
 in fraud of creditors and of trusts, at $450 for labor alleged to have been 
 end of Lore v. Dierkes, 16 Abb. N. previously performed, two unsecured 
 C. (N. Y.) 47, 59 notes, one for the sum of $1,000, pay- 
 
 2 Anderson v. Etter, 102 Ind. 121, able in two years, and one for $2,000, 
 26 N. E. Rep. 218. See g 21. payable in five years, and $900 to be 
 
 3 Bank of Commerce v. Fowler, paid in certain mortgages. It was 
 93 Wis. 245 ; Ferguson v. Hillman. 55 held, on the testimony, that the son 
 Wis. 190, 12 N. W. Rep. 389. See § 198. was not a bona fide purchaser of the 
 
 4 Boone v. Chiles, 10 Pet. 177. In land, and that it was liable for the 
 Knowlton v. Hawes, 10 Neb. 534, 7 payment of the judgment. 
 
 N. W. Rep. 286, it appeared that a 6 Paddon v. Taylor, 44 N. Y. 371 ; 
 
 father, after an obligation had been Brower v. Peabody, 13 N. Y. 121 ; 
 
 incurred, but before judgment, con- Load v. Green, 15 M. & W. 216 ; 
 
 veyed his real estate, worth more Smart v. Betnent, 4 Abb. App. Dec. 
 
 than $5,000, to his son, who had but (N. Y.) 253 ; Bruen v. Dunn, 87 Iowa
 
 6/0 
 
 MORTGAGEE AS A BONA FIDE PURCHASER. 
 
 371 
 
 " A purchaser for a valuable consideration, without notice 
 of a prior equitable right, obtaining the legal estate at 
 the time of his purchase, is entitled to priority in equity 
 as well as at law, according to the well-known maxim 
 that when the equities are equal the law shall prevail." 1 
 If creditors condone the fraud the grantee's title is 
 eood against all comers. 2 
 
 § 371. Mortgagee as bona fide purchaser. — A mortgagee 
 is a purchaser 3 to the extent of his interest. 4 New York 
 has taken an advanced position on this question. It is 
 held in that State that where property is conveyed to a 
 voluntary grantee, and the latter, at the grantor's request, 
 executes a mortgage upon the land to a creditor of the 
 grantor, to secure a debt of the grantor's which existed at 
 the time of the conveyance, the mortgagee is a bona fide 
 purchaser for a valuable consideration, and though the 
 conveyance may be set aside by other creditors, the 
 mortgagee will not be affected. 5 The giving of the mort- 
 
 483, 54 N. W. Rep. 468. Though the 
 Rhode Island statute omits the pro- 
 vision about bona fide purchasers for 
 value contained in the English stat- 
 ute, it is considered that the statute 
 should be construed the same as 
 though that provision had not been 
 omitted. Tiernay v. Claflin, 15 R. I. 
 220, 2 Atl. Rep. 762. 
 
 1 Townsend v. Little, 109 U. S. 512, 
 3 S. C. Rep. 357. Citing Williams 
 v. Jackson, 107 U. S. 478, 2 S. C. Rep. 
 814 ; Willoughby v. Willoughby, 1 T. 
 R. 763 ; Charlton v. Low, 3 P. Wms. 
 328; Ex parte Knott, 11 Ves, 609; 
 Tildesley v. Lodge, 3 Sm. & Giff. 543 ; 
 Shine v. Gough, 1 Ball & B. 436; 
 Bowen v. Evans, 1 Jones & La T. 264 : 
 Vattier v. Hinde, 7 Pet. 252. Ab- 
 sence <>i good faith must be made out 
 bya clear preponderance of evidence. 
 Bradford v. Bradford, 60 Iowa 20-2. I I 
 N. W. Rep. 254. 
 
 2 Millington v. Hill, 47 Ark. 309, 
 1 S. W. Rep. 547. 
 
 3 Boice v. Conover, 54 N. J. Eq. 
 531, 35 Atl. Rep. 402. 
 
 4 Ledyard v. Butler, 9 Paige (N. Y.) 
 132 ; Murphy v. Briggs, 89 N. Y. 451 ; 
 Zoeller v. Riley, 100 N. Y. 108, 2 N. 
 E. Rep. 388; Holmes v. Gardner, 50 
 Ohio St. 167, 33 N. E Rep. 644 ; Jones 
 v. Light, 86 Me. 443, 30 Atl. Rep. 71 ; 
 Chapman v. Emery, I Cowper 278 ; 
 Hill v. Ahern, 135 Mass. 158 ; Valen- 
 tine v. Lunt, 115 N. Y. 496, 22 N. E. 
 Rep. 209. 
 
 5 Murphy 'v. Briggs, 89 N. Y. 446. 
 See upon this confused question 2 
 Pomeroy's Eq. Jur. ££ 748, 749, and 
 cases cited ; Metropoliton Bank v. 
 Godfrey, 23 111. 579 ; Manhattan Co. 
 v. Evertson, 6 Paige (N. Y.) 457 ; Low- 
 ry v. Smith, 9 Hun (N. Y.) 514; 
 Smart v. Betnent, 4 Abb. App. Dec. 
 (N. Y.) 253; Willoughby v.Willoughby,
 
 §§ 37 la » 37- EXECUTION PURCHASER — WITHOUT NOTICE. 671 
 
 gage was regarded as merely applying the property for 
 the benefit of creditors by rescinding the fraudulent 
 transaction, and entering into a new valid contract. As 
 we have seen, 1 the law does not deprive parties of the 
 right to restore to its legitimate purposes property which 
 has been fraudulently appropriated. 2 
 
 § 371a. Execution purchaser. —A purchaser at an execu- 
 tion sale may bring suit to set aside a prior deed of the 
 land made in fraud of the judgment-creditor's claim. :i 
 
 § 372. Without notice. — Judge Story observes that : " It 
 is a settled rule in equity that a purchaser without notice, 
 to be entitled to protection, must not only be so at the 
 time of the contract or conveyance, but at the time of the 
 payment of the purchase-money." 4 On the other hand, it 
 was said in a case which arose in Georgia that the pur- 
 chaser at a sale made with intent to defraud creditors, if 
 himself free from all responsibility for the fraud, was not 
 affected upon afterward discovering the seller's fraud- 
 ulent intent, even though he had not then paid the pur- 
 chase-money, and the notes given for it had not passed 
 beyond the control of himself and the seller, it not appear- 
 ing- that he alone could control the notes without the 
 co-operation of the seller, or that the latter could have 
 been induced to cancel or surrender the notes, which were 
 negotiable. 5 In the United States, even in States where 
 the statutes are a literal rescript of the English statutes 
 of 13 and 27 Elizabeth, the general doctrine is, that the 
 right of the subsequent purchaser to avoid the first 
 
 1 T. R. 763 ; Dickerson v. Tillinghast, 3 Fuller v. Pinson, 98 Ky. 441, 33 S. 
 
 4 Paige (N. Y.) 215; Boyd v. Beck, W. Rep. 399. 
 
 29 Ala. 713; Wells v. Morrow, 38 Ala. 4 Wormley v. Wormley, 8 Wheat. 
 
 125 ; Porter v. Green, 4 Iowa 571. 449 ; Hedrick v. Strauss, 42 Neb. 485, 
 
 1 See § 176. 60 N. W. Rep. 928. See Arnholt v. 
 
 2 Murphy v. Briggs, 89 N. Y. 446. Hartvvig, 73 Mo. 485. 
 
 But compare Wood v. Robinson, 22 5 Nicol v. Crittenden, 55 Ga. 497. 
 
 N. Y. 564.
 
 672 KINDS OF NOTICE. § 373 
 
 conveyance will depend on whether he had notice of its 
 existence at the date of his purchase. 1 This leads us to 
 the consideration of one of the most important branches 
 of our subject, the doctrine of notice as applied to covin- 
 ous alienations. 
 
 § 373- Kinds of notice.— Notice is of two kinds, actual 
 and constructive.'* Actual notice may be shown to have 
 been received or given by all degrees and grades of evi- 
 dence, from the most direct and positive proof to the 
 slightest circumstance from which a jury would be war- 
 ranted in inferring notice. It is a mere question of fact, 
 and is open to every species of legitimate evidence which 
 may tend to strengthen or impair the conclusion. Con- 
 structive notice, on the other hand, is a legal inference 
 from established facts ; and, like other legal presumptions, 
 does not admit of dispute. 3 " Constructive notice," says 
 Judge Story, "is in its nature no more than evidence of 
 notice, the presumption of which is so violent that the 
 court will not even allow of its being: controverted." 4 
 Substantially the same language is employed by Mr. Jus- 
 tice Woods in Townsend v. Little. 5 Chancellor Kent 
 said : " I hold him chargeable with constructive notice, or 
 notice in law, because he had information sufficient to 
 put him upon inquiry." 6 "Constructive notice," says 
 Wright, J., "" is a legal inference from established facts ; 
 
 'See Prestidge v. Cooper, 51 Miss. Griffith, 1 Hoffm. Ch. (N. Y.) 155; 
 
 77. Wyman v. Brown, 50 Me. 148, Hiern v. Mill, 13 Ves. 120 ; Claflin v. 
 
 lays down the rule, however, that a Lenheim, 66 N. Y. 306 ; Birdsall v. 
 
 fraudulent voluntary conveyance is Russell, 29 N. Y. 220, 249. 
 
 void as against a subsequent pur- 4 Story's Eq. Jur. § 399 ; Rogers v. 
 
 chaser even with notice. See Hud- Jones, 8 N. H. 270 ; Cambridge Val- 
 
 nal v. Wilder, 4 McCord's (S. C.) Law ley Bank v. Delano, 48 N. Y. 339. 
 
 295. 5 109 U. S. 511, 3 S. C. Rep. 357. 
 
 2 Lord Erskine in Hiern v. Mill, 13 Citing Plumb v. Fluitt, 2 Anstr. 432; 
 
 Ves. 120. Kennedy v. Greene, 3 Mylne & K. 699. 
 
 5 Selden, J., in Williamson v. 6 Sterry v. Arden, 1 Johns. Ch. (N. 
 
 Brown, 15 N. Y. 359; Griffith v. Y.) 261, 267.
 
 § 374 NOTICE OF FRAUD. 673 
 
 and when the facts are not controverted, or the alleged 
 defect or infirmity appears on the face of the instrument, 
 and is a matter of ocular inspection, the question is one 
 for the court." 1 Constructive notice has been said to be 
 of two kinds ; that which arises upon testimony and that 
 which results from a record. 2 
 
 Actual notice is usually a question for the jury, and is 
 to be established by implication or inference from other 
 facts 3 or circumstances. 4 There is no particular kind of 
 evidence necessary to establish it ; anything- that proves 
 it or constitutes legal evidence of knowledge is com- 
 petent. 5 It is otherwise as to constructive notice. There 
 the law imputes notice to the purchaser, and whether or 
 not this will be done upon a conceded state of facts is 
 not a question for the jury. 6 
 
 § 374- Constructive notice of fraud. — The principles 
 which govern and control the general doctrine of con- 
 structive notice of fraud as bearing upon our subject are 
 not always entirely clear. Williamson v. Brown, 7 already 
 cited, contains an important review of the authorities by 
 the learned Justice Selden, as to the general subject of 
 
 1 Birdsall v. Russell, 29 N. Y. 249. innocent and free from any guilty 
 See Page v. Waring, 76 N. Y. 471. knowledge, or even suspicion of 
 
 2 Griffith v. Griffith, 1 Hoffm. Ch. fraud ; but if they find that facts 
 (N. Y. ) 156. were known to him which were cal- 
 
 3 Bradbury v. Falmouth, 18 Me. 65; dilated to put him on inquiry, his 
 H. T. Simon-Gregory Dry Goods Co. want of diligence in making such in- 
 v. Schooley, 66 Mo. App. 413. quiry is equivalent to a want of good 
 
 4 McNally v. City of Cohoes, 127 N. faith, and the presumption of notice 
 Y. 350, 27 N. E. Rep. 1043 : Ross v. is a legal presumption which is un- 
 Caywood, 16 App. Div. (N. Y. ) 592 ; controvertible." Rapallo, J., in Par- 
 Anderson v. Blood, 152 N. Y. 285, 46 ker v. Conner, 93 N. Y. 124. "The 
 N. E. Rep. 493. whole basis of the rule is negligence 
 
 5 Trefts v. King, 18 Pa. St. 160 in the purchaser. It is a question of 
 
 6 Birdsall v. Russell, 29 N. Y. 249. good faith in him." Peckham, J., 
 " If the doctrine of constructive notice in Acer v. Westcott. 46 N. Y. 384, 389. 
 is applicable, it is immaterial how the ' 15 N. Y. 362; H. T. Simon-Gregory 
 fact is. The jury may be satisfied that Dry Goods Co. v. Schooley, 66 Mo. 
 the purchaser was, in fact, entirely App. 413. 
 
 43
 
 674 NOTICE OF FRAUD. • § 374 
 
 notice. Baker v. Bliss, 1 where the question was as to 
 whether or not a purchaser took with knowledge of the 
 fraud affecting the title of his vendor, seems to clearly 
 establish the rule that to charge a party with such notice 
 the circumstances known to him must be of such charac- 
 ter as ought reasonably to have excited his suspicion, 
 and led him to inquire. 2 It appeared that the purchaser 
 had paid a valuable consideration, and had testified and 
 the referee had found, that he had no actual notice or 
 knowledge of the fraud which rendered the conveyance 
 void as against creditors, '' but that he had sufficient 
 knowledge to put him upon inquiry, and that such knowl- 
 edge was equivalent to notice, and in law amounted to 
 constructive notice." Cases like Williamson v. Brown 8 
 are cited and applied in the opinion. In Ellis v. Horr- 
 man, 4 a record act case, Tracy, J., said : " Notice suffi- 
 cient to make it the duty of a purchaser to inquire, and 
 failure so to do when information is easily accessible, is 
 equivalent to actual notice within the rule of the author- 
 ities." Paige, J., observed in Williamson v. Brown : 5 
 "A party in possession of certain information will be 
 chargeable with a knowledge of all facts which an inquiry 
 suggested by such information, prosecuted with due dili- 
 gence, would have disclosed to him." 6 In Reed v. 
 
 1 39 N. Y. 70. Paige (N. Y.) 421 ; Taylor v. Baker, 5 
 
 - See Burnham v. Brennan, 10 J. Price 306 ; Jones v. Smith, 1 Hare 43- 
 
 & S. (N. Y.) 79; reversed, 74 N. Y. 55. Compare Pringle v. Phillips. 5 
 
 597; Blum v. Simpson, 71 Tex. 628, Sandf. (N. Y.) 157; Danforth v. Dart, 
 
 9 S. W. Rep. 662 ; Hadock v. Hill, 75 4 Duer (N. Y.) 101 ; Roeber v. Bowe, 
 
 Tex. 193, 12S. W. Rep. 971. 20 Hun (N. Y.) 556; Pitney v. 
 
 15 N. Y. 362. Leonard, 1 Paige (N. Y. 461; Peters 
 
 4 90 N. Y. 473. v. Goodrich, 3 Conn. 146 : Booth v. 
 
 15 N. Y. 364. Barnum, 9 Conn. 286; Whitbread 
 
 ■ See Howard Ins. Co. v. Halsey, 4 v. Jordan, 1 Y. & C. 328; Shaw v. 
 
 Sandf. (N.Y.) 578; Kennedy v. Green, Spencer, 100 Mass. 390; Jenkins 
 
 3 Mylne<& K. 699; Flagg v. Mann, 2 v. Eldredge, 3 Story lsi ; Heaton v. 
 
 Sumner 534; Be stl v. Buchan, 76 Prather, 84 111. 330; Garahy v. Bay- 
 
 N. Y. 386; Grimstone v. Carter, 3 ley, 25 Tex. Supp. 294; Birdsall v.
 
 §375 STEARNS V. GAGE. 675 
 
 Gannon, 1 it appeared that the parties dealt upon the 
 assumption that there were liens or incumbrances upon the 
 property, but their number, extent or character was not 
 stated. Rapallo, J., said : "The insertion of these clauses 
 in the instrument was sufficient to put the plaintiffs on 
 inquiry as to the extent and description of the existing 
 incumbrances referred to." It was such notice as in the 
 language of the authorities " would lead any honest man, 
 using ordinary caution, to make further inquiries." 2 
 " Constructive notice," said Haight, J., in Farley v. Car- 
 penter, 3 " is a knowledge of circumstances which would put 
 a careful and prudent person upon inquiry, or such acts as 
 the law will presume the person had knowledge of, on the 
 grounds of public policy ; as, for instance, the laws and 
 public acts of the government, instruments recorded pur- 
 suant to law, advertisements in a newspaper of a notice or 
 process authorized by statute." 4 
 
 § 375- Rule in Stearns v. Gage. — The question of what 
 constitutes " notice " of fraud, or of a fraudulent intent, is 
 one of manifest importance to creditors and purchasers. 
 
 Russell, 29 N.Y. 220; Moore v. William- generally applied to the examination 
 
 son, 44 N. J. Eq. 496, 15 Atl. Rep. 587 ; of titles to real estate. It is the duty 
 
 Kellar v. Taylor, 90 Ala. 289, 7 So. of a purchaser of real estate to inves- 
 
 Rep. 907 ; Allen v. Stingel, 95 Mich, tigate the title of Ids vendor, and to 
 
 195, 54 N. W. Rep. 880 ; Weare v. take notice of any adverse rights or 
 
 Williams, 85 Iowa 253, 52 N. W. Rep. equities of third persons which lie has 
 
 328 ; Washburn y. Huntington, 78 the means of discovering, and as to 
 
 Cal. 573, 21 Pac. Rep. 305. which he is put on inquiry. If he 
 
 1 50 N. Y. 345. See Parker v. Con- makes all the inquiry which due dili- 
 ner, 93 N. Y. 126. gence requires, and still fails to dis- 
 
 2 Whitbread v. Jordan. I Y. & C. cover the outstanding right, he is ex- 
 328. See Acer v. Westcott, 46 N. Y. cused ; but if he fails to use due dili- 
 384 ; Cambridge Valley Bank v. De- gence, he is chargeable, as matter of 
 lano, 48 N. Y. 340. Compare, how- law, with notice of the facts which 
 ever, Battenhausen v. Bullock, 11 111. the inquiry would have disclosed." 
 App. 665. Parker v. Conner, 93 N. Y. 124. See 
 
 3 27 Hun (N. Y.) 362. Acer v. Westcott, 46 N. Y. 384, and 
 
 4 "The doctrine of constructive no- cases cited, 
 tice," says Rapallo, J. " has been most
 
 6y6 stearns v. gage. § 375 
 
 Some apparent dissension has been introduced into this 
 branch of the subject by a dictum of Miller, J., in Stearns 
 v. Gage, 1 followed by the New York Supreme Court in 
 Farley v. Carpenter, 2 and approved in Parker v. Con- 
 ner, 3 and still being applied in the Court of Appeals. 1 
 According to the court's own statement it could not "be 
 claimed that any question as to constructive notice was 
 presented upon the trial" in Stearns v. Gage, and it seems 
 unfortunate that the debatable sentences should have been 
 embodied in the opinion. The court observes that " actual 
 notice is required where a valuable consideration has been 
 paid." The statute relating to fraudulent conveyances '' 
 in New York contains a provision that it " shall not be 
 construed in any manner, to affect or impair the title of a 
 purchaser for a valuable consideration, unless it shall 
 appear that such purchaser had previous notice of the 
 fraudulent intent of his immediate grantor, or of the 
 fraud rendering void the title of such grantor." The court 
 says that "this plainly means that actual notice shall be 
 given of the fraudulent intent or knowledge of circum- 
 stances which are equivalent to such notice. Circum- 
 stances to put the purchaser on inquiry where full value 
 has been paid are not sufficient? .... No authority has 
 been cited which sustains the principle that a purchaser 
 
 1 79 N. Y. 102. See Wilmerding v. Rep. 629; Van Raalte v. Harrington, 
 
 Jarraulowsky, 85 Hun (N. Y.) 285, 32 101 Mo. 610 14 S. W. Rep. 710 ; State 
 
 X. Y. Supp. 983; Wilson v. Marion. v. Merritt, 70 Mo. 275; Knower v. 
 
 147 X. Y. 596. 42 N. E. Rep. 190: Cadden Clothing Co., 57 Conn. 221, 17 
 
 Jacobs v. Morrison, 136 N. Y. 105, 32 Atl. Rep. 580; Seavy v. Dearborn, 19 
 
 X. E. Rep. 552; Anderson v. Blood, N. H. 3. r )l ; Summons v. O^Neill, 60 
 
 152 X. Y. 285, 46 N. E. Rep. 493 ; King Mo. App. 536 ; Wilson v. Marion, 147 
 
 v. Holland Trust Co., 8 App. Div. N. Y. 596 ; 42 N. E. Rep. 190. 
 
 N. Y.) 117, 40 N. Y. Supp. 480. *Wilson v. Mario,.. 117 N. Y. 596, 
 
 -' 27 Hun (X. Y. i 359. See 23 Alb. 42 X. E. Rep. 190 ; Jacobs v. Morrison. 
 
 I.. I. 126. 136 N. Y. 10.-), 32 X. Rep. 552. 
 
 93 X. Y. 118. See Lyons v. 2 R. S. N. Y. 137, § 5. 
 
 Leahy, L50re. 8, 11. 13 Pac. Rep. 643; "Compare Anderson v. Blood, 152 
 
 State v. Mason, 112 Mo. 380, 20 S. W. X. Y. 285, 46 X. E. Rep. 493.
 
 § 375 STEARNS V. GAGE. 677 
 
 for a valuable consideration, without previous notice, is 
 chargeable with constructive notice of the fraudulent 
 intent of his grantor ; and such a rule would carry the 
 doctrine of constructive notice to an extent beyond any 
 principle which has been sanctioned by the courts and 
 cannot be upheld." 
 
 It must be noted that the word "actual" is not embod- 
 ied in the statute, but has been, in effect, interpolated 
 by this construction. We dissent decidedly from the 
 statement that the statute <k plainly means that actual 
 notice shall be given of the fraudulent intent." Such a 
 construction violates the settled rule that statutes of this 
 character shall be liberally construed for the suppression 
 of fraud. 1 It is to be regretted that the utterances quoted 
 occur in a case in which no facts sufficient to put a pur- 
 chaser on inquiry, or to constitute what is often called 
 and sometimes miscalled, constructive notice of fraud, 
 were found or were actually present. Had the court been 
 confronted with such facts and compelled to squarely state 
 the rule in the presence of such facts, these remarks, 
 which we consider unfortunate, might never have been 
 made. It is idle to assail the arguments of the case with 
 violent language, as has more than once been done, but 
 we should rather view the objectionable sentences as 
 unguarded utterances, and entertain the hope that the 
 questionable features of the opinion will be limited 
 and distinguished, and perhaps ultimately overturned. 
 " Knowledge of circumstances which are equivalent to" 
 actual notice are regarded in the opinion as sufficient evi- 
 dence of notice. This plainly implies that the court does 
 not mean to require proof that, as a matter of fact, the 
 purchaser was informed personally of the debtor's or ven- 
 dor's fraudulent intention, but leaves open the wide field 
 of circumstances by which actual notice may be inferred, 
 
 1 See § 20.
 
 678 STEARNS V. GAGE. § 376 
 
 implied and fastened upon him. In other words, " cir- 
 cumstantial evidence" will suffice. 1 In Farley v. Carpen- 
 ter, 2 which follows and adopts Stearns v. Gage, 3 the court 
 at General Term says : " A person may be chargeable with 
 constructive notice and still have no actual notice. Fraud 
 implies an evil or illegal intent. Such intent can only 
 exist in case of knowledge. Under this statute fraud is 
 not a question of negligence, it is a question of knowl- 
 edge and intent ; a party may be negligent in not exam- 
 ining the records for liens and incumbrances on real estate 
 before effecting a purchase, and still be strictly honest, 
 and innocent of fraud." 
 
 We deny that fraud necessarily "implies an evil or 
 illegal intent." The transaction may be pure and honest 
 as regards the debtor's mental emotions, or his belief, or 
 when measured by his standard of morality, and yet be 
 pronounced by the courts fraudulent and void in law. 
 Nor is fraud always " a question of knowledge and intent," 
 because, by a fiction of law, knowledge is constantly im- 
 puted by statutes, and by the courts, in cases where it 
 did not in fact exist, and no evil intent considered as a 
 mental emotion was present. 
 
 §376. — It seems startling if not preposterous to say 
 that circumstances which ought to "put the purchaser on 
 inquiry" are "not sufficient" to taint a transaction with 
 fraud, or to warrant the conclusion that a vendee is not a 
 bona fide purchaser. We submit that this statement is 
 inaccurate and misleading. The confusion undoubtedly 
 results in part from a failure to distinguish between cir- 
 cumstantial evidence sufficient to establish or justify a 
 finding of actual notice of fraud and facts which raise 
 the presumption of constructive notice. 4 The facts and 
 
 1 Farley v. ( larpenter, 27 Hun (N. f 79 N. Y. 102 
 
 ?.)362. 4 In Garesche v. MacDonald, 103 
 
 »27 Hun (N. Y.) 862. Mo. 10, 15 S. W. Rep. 379, the court
 
 §37 6 STEARNS V. GAGE. 679 
 
 circumstances sufficient in either phase of the question to 
 establish notice or bad faith in the vendee bear a close 
 resemblance, if indeed they are not often identical ; 
 hence the doctrine of Stearns v. Gage, if it is effectual for 
 any purpose, is to be regarded as seriously impeding, if 
 not breaking the force of indicia and circumstances as 
 evidence of guilty knowledge. What object is to be sub- 
 served in endeavoring to establish knowledge or notice of 
 a fraudulent intent by proof of surrounding circumstances, 
 if facts sufficient to put an honest man "on inquiry" 
 count for nothing ? Are not facts manifestly sufficient 
 to excite grave suspicions of good faith, at least evidence 
 tending to prove actual notice? 1 Is not a court or jury 
 justified in finding actual notice from facts which should 
 excite inquiry or raise a presumption of constructive 
 notice? In short, is a court or jury justified in finding, 
 as matter of fact, absence of actual notice in cases where 
 facts sufficient to create a clear presumption of construc- 
 tive notice are in evidence ? Can such a verdict or finding 
 be said to honestly reflect the evidence ? It seems incred- 
 ible that a party whose suspicions concerning the fairness 
 and good faith of a transaction must have been excited 
 by the exceptional and peculiar conduct of the parties, 
 can preserve the character of a bona fide purchaser, either 
 by listless inattention and indifference concerning the 
 indicia of fraud, or by active and positive efforts to avoid 
 all knowledge of the true motive or design of the debtor. 
 
 says: " While fraud may be inferred inquiry would have discovered the 
 
 when it is a legitimite deduction from fraud, but the fact that he had such 
 
 all the facts and circumstances in evi- knowledge may be given in v\ idence 
 
 dence in a given case, it is never to be and maybe considered by the jury, 
 
 presumed. " with the other facts and circumstances 
 
 1 In Sammons v. O'Neill, 60 Mo. in the case, in determining the ques- 
 
 App. 586, the court says: "It is not tion whether he really had actual 
 
 sufficient that he may have had knowledge of the fraud." See H. T. 
 
 knowledge of such facts as would have Simon-Gregory Dry Goods Co. v. 
 
 put a prudent man on inquiry, which Schooley, 66 Mo. App. 413.
 
 68o STEARNS V. GAGE. § 376 
 
 This would be offering a premium to vendees who mas- 
 queraded as mutes, or who declined to use their eyes and 
 ears to discover the fraud, the evidence of which sur- 
 rounded them on every side. Is not such a vendee guilty 
 of a " fraudulent turning away from knowledge ?" Must 
 not a person who willfully closes his eyes to avoid seeing 
 what he believes he would have discovered had he kept 
 them open, be considered as having perceived or detected 
 " what any man with his eyes open would have seen ? " 1 
 Is a party who has eyes to be permitted to say that he 
 saw not, and who has ears to be permitted to say that he 
 heard not? When the warning signal has been sounded, 
 and the attention of a party has been aroused, is it not 
 incumbent on such party to stay his hand, until he shall 
 ascertain by the requisite inquiries the facts foreshadowed 
 by the suspicious circumstances? 2 In Farley v. Car- 
 penter 3 the purchaser testified that he thought some- 
 thing was up from the way the debtor talked : " He sent 
 for me ; he wanted to sell me his farm ; I said, ' What is 
 up ? ' he said, ' You need not ask any questions nor say 
 anything for two or three days.' ' The court said it did 
 "not necessarily follow that he should infer" that the 
 debtor "was designing to cheat and defraud his creditors 
 and flee from the State." This case, it seems to us, is 
 squarely opposed to Baker v. Bliss, 4 and can scarcely be 
 reconciled with the views of Rapallo, J., in a case to be 
 presently noticed, in which he entertains "no doubt that 
 it is legitimate for the jury in such cases to consider 
 whether the vendee had knowledge of facts pointing to a 
 fraudulent intent or calculated to awaken suspicion, and 
 
 1 De Witt v. Van Sickle, 29 N. J. 2 Compare Pinckard v. Woods, 8 
 
 Eq. 214. A party "has no right to Graft. (Va.) 140. 
 
 shut his eyes or his ears to the inlet of 3 27 Hun (N. Y.) 361. 
 
 information, and then say he is a 4 39 N. Y. 70. 
 bona fide purchaser without notice." 
 Burwell v. Fauber, 21 Gratt. (Va.) 463.
 
 
 § 37 6 STEARNS V. GAGE. 68 1 
 
 that actual notice of a fraudulent intent on the part of tin- 
 vendor need not be established by direct proof. The fact of 
 notice or knowledge may be inferred from circumstances ." ' 
 
 Let the reader briefly consider this subject in its prac- 
 tical application and bearing. A debtor contemplating 
 flight, suddenly offers to sell his tangible property at a 
 sacrifice for cash to a vendee who sees in the transaction 
 the usual indicia surrounding fraudulent alienations, suffi- 
 cient to put a purchaser "on inquiry." No inquiry is 
 made, the vendee takes title to the debtor's property, or 
 to what is sometimes called the creditors' trust fund, 2 and 
 provides the debtor with its equivalent in money, which 
 has no earmarks and is easily secreted or dissipated, and 
 the latter absconds. Here the vendee has actually facili- 
 tated the consummation of the fraud by furnishing the 
 debtor with a portion of its value in cash in consideration 
 of receiving the property at a sacrifice. 3 Is not the pur- 
 chaser at least a quasi conspirator in such a case, even 
 though the debtor did not openly avow his fraudulent 
 purpose? Imprudence or inattention to the suspicious 
 circumstances may possibly be overlooked, but can will- 
 ful blindness be pardoned? 4 
 
 Again, suppose a deed is made for full value by A. to 
 B., containing recitals or provisions which render it void- 
 
 1 Parker v. Conner, 93 N. Y. 124 ; picion and led to inquiry, the pur- 
 s. p. Carroll v. Hayward. 124 Mass. chaser is regarded as having received 
 122 ; Moore v. Williamson, 44 N. J. Eq. notice of a fraudulent intent and re- 
 504, 15 Atl. Rep. 587 ; Bush v. Roberts, quired to investigate, and on the trial 
 111 N. Y. 282, 18 N. E. Rep. 732; to explain or in some way overcome 
 Lyons v. Leahy, 15 Ore. 8. 13 Pac. the effect of the notice thus given. 
 Rep. 643 ; Knower v. Cadden Clothing Purchasers, under the circumstances 
 Co., 57 Conn. 202, 17 Atl. Rep. 580. suggested, cannot shut their eyes and 
 
 2 See § 14; Egery v. Johnson, 70 shield themselves by proof of the pay - 
 Me. 261. ment of a consideration. They fur- 
 
 3 Compare Singer v. Jacobs, 11 Fed. ther and perfect the wrongful intent 
 Rep. 561 ; Clements v. Moore, 6 Wall, of the debtor when they assist him to 
 299. dispose of his property." Herrlich v. 
 
 4 "If the facts and circumstances Brennan, 11 Hun (N. Y.) 195. 
 are such as ought to have excited sus-
 
 682 ANDERSON V. BLOOD. § 376a 
 
 able as to creditors provided A. is not solvent. In other 
 words, its provisions stamp it as fraudulent in law or void 
 against creditors upon its face if A. is insolvent. 1 The 
 instrument is effectual between the parties, 2 and is good 
 against all the world if A. was solvent ; it is voidable as 
 matter of law if A. was insolvent. Do not these recitals 
 cast upon B. the duty of investigating and inquiring as 
 to the solvency of A. ? If no inquiry is made, and, as 
 matter of fact A. is insolvent, do not the recitals of the 
 instrument then constitute constructive ?iotice to B. of 
 the fraud intended by A. ? The whole supposition of the 
 case is that B. had no actual knowledge or notice of 
 the intended fraud. 
 
 It is difficult to assign any reason why the doctrine of 
 constructive notice, if it has any application to our sub- 
 ject at all, should not be applied in a case in which ade- 
 quate consideration has been given. Where the fraudu- 
 lent intent is present, proof of consideration will not 
 save the transaction ; it is merely a fact, a piece of evi- 
 dence, tending among other things to establish want of 
 notice ; but it clearly has no such controlling or over- 
 shadowing effect, and bears no such strong relation to 
 the transaction as to justify the court in disregarding, as 
 the basis of a finding of notice, proof of facts sufficient 
 to excite inquiry or suspicion, or to constitute construc- 
 tive notice. Indeed actual or pretended payment of con- 
 sideration is almost a necessary incident of a covinous 
 transaction, and often serves as a convenient cover for 
 fraud. 
 
 § 376a. Anderson v. Blood. — The proposition as to what 
 constitutes sufficient notice to a party to deprive him of 
 the character of a bona fide purchaser was re-discussed by 
 Gray, J., in the recent case of Anderson v. Blood. 3 
 
 1 See ?£ 9, 10, 322. 3 152 N. Y. 285, 293, 4G N. E. Rep. 
 
 * See Chap. XXVI. 493.
 
 § 376a ANDERSON V. BLOOD. 683 
 
 Evidently conflicting opinions prevailed in the deliber- 
 ations of the court, as three judges dissent from the 
 prevailing conclusions. In the course of the opinion 
 Gray, J., says : " The rule, as it was early laid down in 
 the case of Williamson v. Brown, 1 has not been departed 
 from in any subsequent case, of which I am aware. That 
 was that, where a purchaser of land has knowledge of 
 any facts sufficient to put him upon inquiry as to the exist- 
 ence of some right, or some title, in conflict with that he 
 is about to acquire, he is presumed either to have made 
 the inquiry and ascertained the extent of such prior right, 
 or to have been guilty of a degree of negligence equally 
 fatal to his claim to be considered a bona fide purchaser. 
 Many subsequent cases in this court have rested upon the 
 rule in Williamson v. Brown. But all are to the point 
 that a purchaser for a valuable consideration is entitled to 
 be protected in his title and, in the absence of actual 
 notice of fraud, it is necessary that the facts and circum- 
 stances, relied upon to charge him with knowledge of the 
 fraud, should be of a character equivalent to notice. If 
 the facts within the knowledge of the purchaser are of 
 such a nature, as, in reason, to put him upon inquiry, 
 and to excite the suspicion of an ordinarily prudent 
 person and he' [fails to make some investigation, he will 
 be chargeable with that knowledge which a reasonable 
 inquiry, as suggested by the facts would have revealed. 2 
 I will assume in the present case, for the purpose of 
 the discussion, that the beneficiaries of this estate might 
 be regarded as having such equitable interests in the 
 property as to impose a stricter duty of vigilance in the 
 case of an intending purchaser, than would be required 
 
 1 15 N. Y. 354. v. Conner, 93 N. Y. 118 ; Bush v. 
 
 2 See Le Neve v. Le Neve. Amb. Roberts, 111 N. Y. 278, 18 N E. Rep. 
 436, 2 Lead. Cas. Eq. (6th ed.) 26; 732; Jacobs v. Morrison, 136 N. Y. 
 Williamson v. Brown, 15 N. Y. 354 ; 101, 32 N. E. Rep. 552. 
 
 Stearns v. Gage, 79 N. Y. 102 ; Parker
 
 684 ANDERSON V. BLOOD. § 376a 
 
 where the parties interested were the general creditors of 
 the grantor, and with that assumption, which perhaps is 
 barely justified in this case, I still am unable to perceive in 
 what way Mrs. Blood was chargeable with the neglect 
 of any duty of inquiry resting upon her by reason of the 
 
 circumstances The question is not whether Mrs. 
 
 Blood could have discovered the existence of any fraud by 
 an inquiry; but it is whether, acting as an ordinarily pru- 
 dent person would have done, she was called upon, under 
 the circumstances, to make inquiry. Were the circum- 
 stances such as to necessitate the making of some inquiry, 
 at the peril of being charged with the knowledge of some 
 then unperceived fact? However strong the circum- 
 stances may have seemed to militate against the good 
 faith of Hernz and Melhado in the transaction, I do not 
 think they would have warranted Mrs. Blood in then 
 declaring that some collusion existed to defraud the 
 beneficiaries of the trust estate." 
 
 It will be noticed that in this case the court intimate a 
 distinction between a bona fide purchaser claiming against 
 the beneficiaries of a trust estate, and parties who are 
 merely the general creditors of the grantor. Certainly 
 the tendency of this decision is to establish, at least as 
 regards the argument of the court and the words 
 employed in reaching its conclusion, a result some- 
 what more favorable to creditors than the expressions 
 employed in Stearns v. Gage 1 and Parker v. Conner, 2 
 where the duty of the purchaser to make inquiry in the 
 presence of suspicious facts and circumstances was in 
 effect denied. 3 
 
 1 79 N. Y. 102. Statute of Limitations to bar him, 
 
 * 93 N. Y. 118. Finch, J., said : '• Let us suppose that 
 
 3 In Higgins v. Crouse, 147 N. Y. the injured party does not know all the 
 
 415, 42 N. E. Rep. 6, the question arose facts, is not aware of enough of them 
 
 as to whether a party had such knowl- to justify a decided inference of 
 
 edge of a fraud as would cause the fraud, but does know sufficient to
 
 377 
 
 CARROLL V. IIAYWARD. 
 
 685 
 
 §377- Carroll v. Hayward — Actual belief. — This question 
 of notice, as applied to our subject, has frequently been 
 up for adjudication in Massachusetts. " Reasonable 
 cause to know," said Ames, J., u is evidence having a ten- 
 dency, and generally a strong tendency, to prove that the 
 party in question did know, but it is a mistake to say 
 that it is the same thing as knowledge. What might con- 
 vince one man might be insufficient to satisfy the mind 
 of another." 1 Thus in an action for deceit by false rep- 
 resentations the scienter must be proved and found as 
 matter of fact, and it is not enough merely to prove that 
 the party had reasonable cause to believe the representa- 
 tion untrue, and from that infer scienter as a question 
 of law. 2 The distinction between reasonable cause to 
 believe and actual belief is pointed out in Coburn v. 
 Proctor. 3 
 
 fairly arouse suspicion, to create a 
 probability, to suggest the need of an 
 inquiry. Can a party so situated omit 
 all investigation, remain purposely 
 blind, neglect the duty of inquiry, 
 when reasonable and natural action 
 would reveal the truth and disclose 
 the fraud ? I think not. In such a 
 case, it seems to me, that we are 
 bound to impute to the party the 
 knowledge which he ought to have 
 had and would have had if he had 
 done his duty, and say for the pur- 
 poses of the Statute of Limitations 
 that there was in law a discovery of 
 the facts which constitute the fraud. 
 .... I think the true rule is that, 
 where the circumstances are such as 
 to suggest to a person of ordinary in- 
 telligence the probability that he has 
 been defrauded, a duty of inquiry 
 arises, and if he omits that inquiry 
 when it would have developed the 
 truth, and shuts his eyes to the facts 
 which call for investigation, knowl- 
 
 edge of the fraud will be imputed to 
 him.*' The facts, however, in this 
 case were held not to bring it within 
 the rule as stated . 
 
 1 Carroll v. Hayward, 127 Mass. 
 122 ; State v. Mason, 112 Mo. 380, 20 
 S. W. Rep. 629. Compare Bicknell v. 
 Mellett, 160 Mass. 328, 35 N. E. Rep. 
 1130. 
 
 2 Pearson v. Howe, 1 Allen (Mass.) 
 207; Tryon v. Whitmarsh, 1 Met. 
 (Mass.) 1. 
 
 3 15 Gray (Mass.) 38. The statute 
 provided (Laws Mass. 1856, chap. 284, 
 § 27) that preferential conveyances 
 made to any person who had "reason- 
 able cause to believe such debtor in- 
 solvent," might be avoided by (lie 
 assignee. In a suit brought to avoid 
 such a transfer, testimony that the 
 defendants believed the debtor per- 
 fectly solvent was declared incompe- 
 tent. It was considered that the only 
 inquiry which under the statute was 
 relevant to the issue was whether the
 
 686 
 
 PARKER V. CONNER. 
 
 §378 
 
 v* 378. Parker v. Conner. — The New York Court of 
 Appeals again reverted to this general subject in Parker v. 
 Conner. 1 Baker v. Bliss, 2 and Reed v. Gannon, 3 are there 
 emasculated so that creditors can draw little aid or com- 
 fort from them, and Stearns v. Gacre 4 is considered "suffi- 
 cient to dispose of the present controversy." Rapallo, J., 
 one of the ablest judges and clearest writers in the court, 
 said : "We think that in cases like the present, where an 
 intent to defraud creditors is alleged, the question to be 
 submitted to the jury should be whether the vendee did 
 in fact know or believe that the vendor intended to 
 defraud his creditors, not whether he was negligent in 
 failing to discover the fraudulent intent The ven- 
 dor's title and legal right of disposition are unquestioned, 
 and the ground upon which the transfer is impeached is 
 not any defect in the chain of title, but that the vendor's 
 motive in selling was to hinder, delay or defraud his own 
 
 defendants had reasonable cause to 
 believe the debtor insolvent ; that is 
 whether, in view of all the facts and 
 circumstances which were known to 
 tin- defendants concerning the busi- 
 ness and pecuniary condition of the 
 debtor in connection with the time 
 and mode of transfer of the property 
 taken, they as reasonable men, acting 
 with ordinary prudence, sagacity and 
 discretion, had good ground to believe 
 that the debtor was insolvent. " It 
 was not intended by the statute," said 
 Bigelovv, J., "to make the actual be- 
 lief of the party concerning the sol- 
 vi iicy of the debtor one of the stan- 
 dards by which to test the validity of 
 the transfer of property to him. 
 Such belief might or might not be 
 well founded. It would be an uncer- 
 tain and fluctuating standard. That 
 which would satisfy the mind of one 
 mail would be wholly insufficient to 
 convince another ; and those facts 
 
 which would fall far short of produc- 
 ing a belief in a person who was dis- 
 interested and impartial might have 
 a very different effect upon the same 
 person when acting under the strong 
 influence of self interest." Coburn v. 
 Proctor, 15 Gray (Mass.) 38. 
 
 1 9:j N. Y. 118, 45 Am. Rep. 178. 
 See especially the learned note by 
 Irving Browne, Esq., in which many 
 of the cases here cited are discussed. 
 See 29 Alb. L. J. 244 ; Bush v. Rob- 
 erts, 111 N. Y. 282, 18 N. E. Rep. 732 ; 
 Van Raalte v. Harrington, 101 Mo. 
 610, 14 S. W. Rep. 710 ; Knower v. 
 Cadden Clothing Co., 57 Conn. 202, 
 221, 17 Atl. Rep. 580 ; Seavy v. Dear- 
 born, 19 N. H. 351 ; Wilson v. Marion, 
 147 N. Y. 596, 42 N. E. Rep. 190 ; 
 Jacobs v. Morrison, 136 N. Y. 105, 32 
 N. E. Rep. 552. 
 
 -' 39 N. Y. 70. 
 
 ; :.0 N. Y. 345. 
 
 4 79N. Y. 102.
 
 § 37' S PARKER V. CONNER. 687 
 
 creditors. In such a case there is no duty of active 
 vigilance cast upon the purchaser, for the benefit of 
 creditors of the vendor, which should require him to sus- 
 pect and investigate the motives of the vendor. If he 
 knows or believes them to be fraudulent, he has no right 
 to aid the vendor in his fraudulent scheme, and by so 
 doing he makes himself a party to the fraud. But fraud 
 should not be imputed by the application of the strict 
 rules of constructive notice in such a case, and actual 
 good faith should be sufficient to protect the purchaser." 
 It will thus be seen that the dictum of Stearns v. Gage is 
 adopted in a qualified sense. We respectfully urge that 
 the proposed test, Did the vendee " in fact knozu or believe 
 that the vendor intended to defraud his creditors?" is 
 loose, uncertain and unsatisfactory. The court proceed 
 to state that on general principles, independent of the 
 statute, the same rules are applicable in such cases as 
 govern in determining the bona fides of commercial paper, 
 viz.: not whether the holder took the bill or note without 
 exercising sufficient prudence and care, but whether it 
 came into his hands under such circumstances as to charge 
 him with receiving it mala fide, and that unless he is 
 fairly chargeable with notice of the fraud, even negligence 
 will not defeat his title. 1 There certainly is novelty in 
 the idea of invoking the rule governing commercial paper 
 for the protection of the alienees of fraudulent debtors. 
 
 It is foreign to our plan to further trace this line of 
 cases. While conceding that there is plausibility in the 
 reasons assigned for the non-application of the doctrine 
 pure and simple of constructive notice to fraudulent trans- 
 
 1 See this rule applied to cotnmer- Branch Bank v. Hoge, 35 N. Y. 65, 
 
 cial paper. Cook v. Jadis, 5 Barn. & overruling Pringle v. Phillips, 5 
 
 Adol. 909; Blackhouse v. Harrison. Sandf. (N. Y.) 157; Danforth v. Dart, 
 
 5 Barn. & Adol. 1098; Goodman v. 4 Duer (N. Y.) 101. See Parker v. 
 
 Harvey, 4 Adol. & El. 870 ; Magee v. Conner, 93 N. Y. 128. 
 Badger, 34 N. Y. 247; Belmont
 
 688 FACTS TO EXCITE INQUIRY. § 379 
 
 fers, we bow to some of these decisions of the highest court 
 of a great State with hesitation and reluctance. The great 
 embarrassments under which creditors labor in over- 
 coming the presumptions of legality and good faith which 
 ordinarily inhere in all alienations and transactions of 
 the debtor have already been considered. 1 Proof of 
 fraud is usually an herculean task, and creditors should 
 not consent without a struggle to be divested of so 
 important and useful a factor in their litigations as the 
 doctrine of constructive notice of fraud, at least con- 
 sidered as a circumstance, would be likely to prove. 
 Before further discussing- in the abstract what we con- 
 sider the objections to the principles embodied in some of 
 these cases we will glance at the many authorities which 
 tend at least to establish a more favorable rule for the 
 creditor class. 
 
 § 379- Facts sufficient to excite inquiry. — Let us notice the 
 cases. In Bartles v. Gibson, 2 Bunn, J , with whom 
 Harlan, J., of the United States Supreme Court con- 
 curred, said: " The defendant testified that he knew that 
 his brother was in some difficulty, and that the trouble 
 was of a financial character. Whether he knew all or not, 
 
 he knew enough to put him upon inquiry If he 
 
 had knowledge of facts sufficient to excite the suspicions 
 of a prudent man and put him on inquiry, he made him- 
 self a party to the fraud? 3 This is a wholesome and 
 
 1 See§§ 5, 6, 7, 8, 244, 271. Singer v. Jacobs, 11 Fed. Rep. 559 ; 
 
 -' 17Fed. Rep. 297; Bedford v. Penny, Hadock v. Hill, 75 Tex. 193, 12 S. W. 
 
 58 Mich. 424, 25 N. W. Rep. 381; Brit- Rep. 974 ; Richolson v. Freeman, 56 
 
 tain v. Crowther, 54 Fed. Rep. 295 ; Kan. 464, 43 Pac. Rep. 772 ; Jerome v. 
 
 Redhead v. Pratt, 72 Iowa 103, 33 N.W. Carbonate Nat. Bank, 22 Col. 42, 47 
 
 Rep. 382; Hasie v. Connor, 53 Kan. 721, Pac. Rep. 215. 
 
 37 Pac. Rep. 128 ; Dodd v. Gaines. 82 3 Citing Atwood v. Impson, 20 N. 
 
 Tex. 429, 18 S. \V. Rep. 618 ; Martin J. Eq. 156 ; Baker v. Bliss, 39 N. Y. 
 
 v. Marshall, 54 Kan. 148, 37 Par. Rep- 70; Avery v. .Johanii, 27 Wis. 251 : 
 
 977 ; Walker v. Collins, 4 U. S. App. Kerr on Fraud, 236; David v. 
 
 415, 50 Fed. Rep. 737, 1 C. C. A. 642 ; Birchard, 53 Wis. 492, 10 N. W. Rep.
 
 §379 
 
 FACTS TO EXCITE TNOUIRV. 
 
 689 
 
 refreshing statement. Chancellor Zabriskie, after ob- 
 serving that if the object of a debtor in making an 
 alienation is to hinder and delay any of his creditors, the 
 transaction may be avoided, if made to any one having 
 knowledge of the intent, continues : " This knowledge 
 need not be by actual positive information or notice, but 
 will be inferred from the knowledge by the purchaser of 
 facts and circumstances sufficient to raise such suspicions 
 as to put him upon inquiry." 1 In Singer v. Jacobs, 2 the 
 court adopt the summary of Mr. Bigelow, 3 as follows : '' If 
 facts are brought to the knowledge of a party which 
 would put him as a man of common sagacity upon 
 inquiry, he is bound to inquire, 4 and if he neglects to do 
 so, he will be chargeable with notice of what he might 
 
 557. See Zimmerman v. Heinrichs, 
 43 Iowa 260 ; Coolidge v. Heneky, 11 
 Ore. 327, 8 Pac. Rep. 281. In William- 
 son v. Brown, 15 N. Y. 362, an im- 
 portant and leading case, Selden, J., 
 lays down the rule that "where a 
 purchaser has knowledge of any fact 
 sufficient to put him on inquiry as to 
 the existence of some right or title in 
 conflict witli that he is about to pur- 
 chase, he is presumed either to have 
 made the inquiry and ascertained the 
 extent of such prior right, or to have 
 been guilty of a degree of negligence 
 equally fatal to his claim to be con- 
 sidered as a bona fide purchaser." 
 See Hinde v. Vattier, 1 McLean 110 ; 
 Nantz v. McPherson, 7 Mon. (Ky. ) 
 599 ; Cotton v. Hart, 1 A. K. Marsh. 
 (Ky.) 56 ; Hawley v. Cramer, 4 Cow. 
 (N .Y.)718 ; Morrow Shoe Mfg. Co. v. 
 New England Shoe Co., 6 C. C. A. 508, 
 57 Fed. Rep. 693 ; Dyer v. Taylor, 50 
 Ark. 320, 7 S. W. Rep. 258. Knowl- 
 edge that the debtor is selling goods 
 below cost is not notice of fraud to a 
 vendee. Hinds v. Keith, 57 Fed. 
 Rep. 10. But guilty knowledge of an 
 agent may be imputed to his prin- 
 
 44 
 
 cipal. Morris v. Lindauer, 54 Fed. 
 Rep. 23. 
 
 1 Atwood v. Impson, 20 N. J. Eq. 
 156. See De Witt v. Van Sickle, 29 
 N. J. Eq. 214; Magniac v. Thompson. 
 7 Pet. 393 : Millholland v. Tiffany, 4 
 East. Rep. 214 ; The Holladay Case, 
 27 Fed. Rep. 830 ; Clements v. Moore, 
 6 Wall. 312 ; Kitch v. St. Louis K. 
 C. & N. Ry. Co.. 69 Mo. 224 : Gollober 
 v. Martin, 33 Kan. 255, 6 Pac. Rep. 
 267 ; Walker v. Collins, 1 C. C. A. 
 642, 4 U. S. App. 415, 50 Fed. Rep. 
 737 ; Haskett v. Auhl, 3 Kan. App. 
 744, 45 Pac. Rep. 608 ; Richolson v. 
 Freeman, 56 Kan. 463, 43 Pac. Rep. 
 772 ; Hooser v. Hunt, 65 Wis. 71, 26 
 N. W. Rep. 442. Where the vendee 
 stated that there were no claims 
 against him, the mere fact that the 
 purchaser knew that there was a small 
 claim is not enough to put such pur- 
 chaser on inquiry. B. C. Evans Co. 
 v. Reeves, 6 Tex. Civ. App. 254, 26 S. 
 W. Rep. 219. 
 
 *11 Fed. Rep. 361. 
 
 3 Bigelow on Frauds, pp. 288-9. 
 
 ••Compare Cowling v. Estes, 15, 
 111. App. 260.
 
 69O FACTS TO EXCITE INQUIRY. §379 
 
 have learned upon examination. 1 .... If, however, there 
 be no fraudulent turning away from knowledge which the 
 res gestce would suggest to a prudent mind ; if mere want 
 of caution, as distinguished from fraudulent or willful 
 blindness, is all that can be imputed to a purchaser of 
 property, the doctrine of constructive notice will not apply 
 to him." In Wilson v. Prewit, 2 a suit brought to annul 
 an ante-nuptial settlement, Woods, J., said : " Actual 
 knowledge of the fraudulent intent is not necessary. A 
 knowledge of facts sufficient to excite the suspicions of a 
 prudent man or woman, and to put him or her on inquiry, 
 amounts to notice, and is equivalent to actual knowledge 
 in contemplation of law. 3 It has even been held that the 
 means of knowledge, by the use of ordinary diligence, 
 amounts to notice." 4 The judgment in this case was 
 reversed, 5 but upon the very excellent ground that the 
 knowledge of the facts which the wife possessed " rather 
 dispelled than created any suspicion that the husband had 
 a design to defraud his creditors." In Shauer v. Alter- 
 ton, 6 the court says : ''While the plaintiff was not bound 
 to act upon mere suspicion as to the intent with which 
 his brother made the sale in question, if he had knowl- 
 edge or actual notice of circumstances sufficient to put 
 him, as a prudent man, upon inquiry as to whether his 
 
 1 See Walker v. Collins, 4 U.S. App. 80 Cal. 421, 22 Pac. Rep. 290; Dyer 
 
 415, 50 Fed. Rep. 737, 1 C. C. A. 642 ; v. Taylor. 50 Ark. 314, 7 S. W. Hep. 
 
 Shauer v. Alterton, 151 U. S. 607, 622, 258; Rugan v. Sabin, 53 Bed. Rep. 
 
 14 S. C. Rep. 442. 415 : Bland v. Fleeraan, 58 Ark. 84, 
 
 *?, Woods 641. 23 S. W. Rep. 4 : Percy v. Cockrill, 
 
 3 Citing At wood v. Impson, 20 N. 53 Fed. Rep. 872 ; De Mares v. Gilpin, 
 
 J. Eq. 150; Tantumv. Green, 20 N. J. 15 Col. 84, 24 Pac Rep. 568; Norria 
 
 Eq. 364; Jackson v. Mather, 7 Cow. v. Haggin, 13(5 U. S. 380, 10 S. C. 
 
 (X. V., 301; Smith v. Henry, 2 Rep. 942. 
 
 Bailey's (S. C.) Law lis: Mills v. 4 Citing Farmers' Bank v. Douglass, 
 
 Howeth, l'.nVx. 257. Sec also Blum 1!) Miss. 469. 
 
 v. Simpson. 71 Tex. 628, 9 S. \V. Rep. 1'ivwit v. Wilson. 103 U. S. 22. 
 
 662; Nicholson v. Condon, 71 Md. 621, ' 151 r. s. 621, 14 S. C. Rep. 442. 
 is Atl. Rep. B12 : Godfrey v. Miller,
 
 § 3 8 ° FACTS TO EXCITE ENQUIRY. 6<jl 
 
 brother intended to delay or defraud his creditors, and he 
 omitted to make such inquiry with reasonable diligence, 
 he should have been deemed to have notice of such fact, 
 and, therefore, such notice as would invalidate the sale to 
 him." This utterance certainly puts the Supreme Court 
 in line with our contention. In Kansas the court says : 
 " If the facts brought to his attention are such as to 
 awaken suspicion, and lead a man of ordinary prudence 
 to make inquiry, he is chargeable with notice of the 
 fraudulent intent, and with participation in the fraud." 1 
 In Bush v. Roberts, 2 Gray, J., observed: "The action 
 could only prevail by proof" that the purchaser "had 
 actual notice of a fraudulent motive" on the part of the 
 seller " or knowledge of circumstances which was equiva- 
 lent to such notice. If he knew, or had believed the 
 motives of his vendor to be fraudulent, then, by aiding 
 him in his scheme, he made himself a party to the fraud. 3 
 But no evidence is competent proof to affect him, or his 
 right to the possession of his property, which falls short 
 of proving the nature of the transaction, and of illustra- 
 ting the guilty participation of the vendee." 
 
 In some of the States the doctrine of the cases is that 
 knowledge of the existence of suspicious circumstances is 
 merely evidence from which actual knowledge of fraudu- 
 lent designs may be inferred by the jury. 4 
 
 §380. — Swayne, J., in delivering the opinion of the 
 United States Supreme Court, said : " A sale may be void 
 for bad faith, though the buyer pays the full value of the 
 property bought. This is the consequence where his pur- 
 pose is to aid the seller in perpetrating a fraud upon his 
 
 1 Gollober v. Martin, 33 Kan. 255. W. Rep. 629 ; State v. Purcell. 131 Mo. 
 
 1 111 N. Y. 282, 18 N. E. Rep. 732. 312; Van Raalte v. Harrington, 101 
 
 3 Citing Parker v. Conner, 93 N. Mo. 602, 14 S. W. Rep. 710. See also 
 Y. 118. Knower v. Cadden Clothing Co., 57 
 
 4 State v. Mason, 112 Mo. 374, 20 S. Conn. 202, 17 Atl. Rep. 580.
 
 692 FACTS TO EXCITE INQUIRY. §380 
 
 creditors, and where he buys recklessly with guilty knowl- 
 edge." ] In a controversy in Alabama 2 it is said that 
 " participation by the grantee may be proved by any cir- 
 cumstances sufficient to charge his conscience with knowl- 
 edee or notice of the fraudulent designs of the orrantor." : 
 In a Maryland case this language occurs : " All that was 
 necessary to make him take subject to the fraud was suffi- 
 cient knowledge of the suspicious circumstances to put 
 him on inquiry." 4 In David v. Birchard, 5 where a mort- 
 gage was attacked, the court says that " this knowledge 
 need not be actual positive information or notice, but may 
 be inferred from the knowledge of the mortgagee of facts 
 and circumstances sufficient to raise such suspicions as 
 should put him on inquiry." In De Witt v. Van Sickle 6 
 the court observed : "A person who deals in the avails of 
 a scheme to defraud creditors, to keep what he gets, must 
 not only pay for it, but he must be innocent ot any pur- 
 pose to further the fraud, even to protect himself. Actual 
 notice need not be shown. If the purchaser has before 
 him, at the time of his purchase, facts and circumstances 
 from which a fraudulent intent, either past or present, on 
 the part of the vendor, is a natural and legal inference, or 
 such facts or circumstances of suspicion as would naturally 
 prompt a prudent mind to further inquiry and examina- 
 
 1 Clements v. Moore, 6 Wall. 312. facts and surrounding circumstances, 
 
 Compare Howe Machine Co. v. Clay- pregnant with inference and provoca- 
 
 bourn, G Fed. Rep. 442. tive of inquiry, is as potent to impart 
 
 - Hoyt & Bros. Manuf. Co. v. Tur- notice as a public proclamation or an 
 
 ner, 84 Ala. 528, 4So. Rep. 058. army with banners. Conn. Mut. Life, 
 
 See Hooser v. Hunt, 65 Wis. 71. Ins. Co. v. Smith, 117 Mo. 292, 22 S. 
 
 79, 26 N. W. Rep. 442, declining to W. Rep. 623. 
 
 follow Steam v. Gage, 79 X. V. 102, * Biddinger v. Wiland, 67 Md. 362, 
 
 and Parker v. Conner, 93 N. Y. 118. 10 Atl. Rep. 202. 
 
 Ii is said in a Missouri case that courts 5 53 Wis. 495, 10 N. W. Rep. 557. 
 
 of equity, since their earliest founda- See Millholand v. Tiffany, 4 Hast. 
 
 tion, bave always recognized the fact Rep. 214 ; Green v. Early, 39 Md. 225 ; 
 
 that- the still small voice of suggestion, Thompson v. Duff, 19 III. A.pp. 78. 
 
 emanating as ii will from contiguous ' 29 N..I. Eq. 215.
 
 § 380 FACTS TO EXCITE INQUIRY. 693 
 
 tion, which, if pursued, would lead necessarily to a dis- 
 covery of the corrupting facts, he is chargeable with 
 notice." ! In Prewit v. Wilson 2 the court observed that the 
 grantee to lose the benefit of the transfer " must be charge- 
 able with knowledge of the intention of the grantor," not 
 that explicit and direct proof of actual knowledge must 
 be adduced. In Hopkins v. Langton, 3 Chief-Justice 
 Dixon said : " Knowledge by the vendee of the fraudu- 
 lent intent, or the existence within his knowledge of 
 other facts and circumstances naturally and justly calcu- 
 lated to awaken suspicion of it in the mind of a man of 
 ordinary care and prudence, thus making it his duty to 
 pause and inquire, and a wrong on his part not to do so, 
 before consummating the purchase, is essential in order 
 
 to charge the vendee The vendee cannot shut his 
 
 eyes, but must look about him and inquire." 4 "What- 
 ever is notice enough to excite attention and put the 
 party on his guard, and call for inquiry, is also notice of 
 everything to which it is afterwards found that such 
 inquiry might have led. 5 When a person has sufficient 
 information to lead him to a fact, he shall be deemed 
 conversant with it." G There must be some reason to 
 awaken inquiry and direct diligence in the channel in 
 which it would be successful. That is what is meant by 
 
 1 Citing Tantum v. Green, 21 N.J. short of this would be sufficient to 
 Eq. 364. charge them ivith knoxvledge." The 
 
 2 103 U. S. 24. court above said : " A proposition so 
 
 3 30 Wis. 381 . wide from the true rule of law gov- 
 . 4 In this same case the court had erning in such case requires no argu- 
 instructed the jury that in order to ment to elucidate its error." Hopkins 
 affect the parties with notice of a v. Langton, 30 Wis. 382, 383. 
 fraudulent intent, so as to avoid 8 See Staauer v. Alterton, 151 U. S. 
 the sale, they must have "had be- 607, 622, 14 S. C. Rep. 442. 
 
 fore them,'" at the time the goods 6 Kennedy v. Green, 3 Myl. & K. 
 
 were purchased, " good and substan- 719; adopted in Wood v. Carpenter, 
 
 tial evidence of it, such as sends con- 101 U. S. 141 ; Shauer v. Alterton, 151 
 
 viction home to the mind and' estab- U. S. 607, 622, 14 S. C. Rep. 442. 
 lishes a well-founded belief ; nothing
 
 694 FACTS TO EXCITE INQUIRY. § 38 1 
 
 reasonable diligence. 1 " The presumption is that if the 
 party affected by any fraudulent transaction or manage- 
 ment might, with ordinary care and attention, have sea- 
 sonably detected it, he seasonably had actual knowledge 
 
 OI It. " 
 
 ^381. — "Means of knowledge are the same thing in 
 effect as knowledge itself," 3 and " are equivalent to 
 actual knowledge," 4 is the language employed in some 
 of the cases. As applied to our subject at least, it is 
 conceded that these statements are inaccurate, for guilty 
 knowledge would of course defeat the purchaser's title, 
 while the means of knowledge would not have that effect 
 unless the duty to inquire was cast upon him. Again, 
 while a preference would not be avoided under the late 
 bankrupt act, by reason of a mere suspicion of the debtor's 
 insolvency in the mind of the creditor, yet knowledge of 
 facts calculated to produce such a belief in the mind of 
 an ordinarily intelligent man would avoid the security. 5 
 
 It may be urged that some of the citations given are 
 from cases in other branches of the law than that govern- 
 ing fraudulent transfers. This may be true as to a few 
 of the citations, but the mass of the authorities collated 
 directly involved the question of notice of a fraud in an 
 alienation made to defeat creditors. It is submitted that 
 in no department of the law is there greater need for 
 
 1 Maule v. Rider, 59 Pa. St. 171. Tin Co., 7 Sawyer 418; New Albany 
 See Wilson v. Hunter, 30 Ind. 472 ; v. Burke, 11 Wall. 107; Broderick's 
 Cambridge Valley Bank v. Delano, 48 Will, 21 Wall. 518, 519; Ashhursfa 
 N. Y. 336, 339, 340. Appeal, 00 Pa. St. 290 ; Wood v. Car- 
 
 2 Angell on Limitations, § 187, and penter, 101 U. S. 141. 
 
 note. 5 Grant v. National Bank, 97 U. S. 
 
 Wood v. Carpenter, 101 U. S. 82 ; Barbour v. Priest, 103 U. S. 297. 
 
 L35, 143. See Kurtz v. Miller, 26 See Stucky v. Masonic Sav. Bank, 108 
 
 Kan. 319 ; Lady Washington Consol. U. S. 75 ; Swan v. Robinson, 5 Fed. 
 
 Co. v. Wood, 113 Cal. 487, 45 Pac. Rep. 294; Reber v. Gundy, 13 Fed. 
 
 Rep. 809. Rep. 56; May v. Le Claire, 18 Fed. Rep. 
 
 4 Dannmeyer v. Coleman, 8 Sawyer 164. 
 51 , 58. Citing Mannng v. San Jacinto
 
 § 3§2 ACTUAL BELIEF. 695 
 
 increased facilities to detect and unearth fraud than in 
 that regulating covinous alienations, and therefore the 
 cases illustrating other branches of the law are not irrele- 
 vant. Clearly the dictum of Miller, J., already quoted, 
 that "circumstances to put the purchaser on inquiry 
 where full value has been paid are not sufficient" notice 
 of fraud, cannot be supported or recognized as against 
 this multitude of authorities. 
 
 If the creditor is to be divested of the benefits of the 
 doctrine of constructive notice in and by itself, or as a 
 circumstance, as some of the cases cited seem to indi- 
 cate, then we contend that facts sufficient to excite 
 inquiry or to put a prudent man upon his guard should 
 raise a presumption of guilty knowledge or constitute 
 prima facie proof of actual notice of the fraudulent 
 design or of participation therein, which, in the absence 
 of satisfactory explanation, should be conclusive. Con- 
 structive notice in this connection may be likened to the 
 rule still prevailing in some States to the effect that a 
 failure to effect a change of possession on a sale of per- 
 sonalty is conclusively presumed to be fraudulent as to 
 creditors. The doctrine which we advance is akin to the 
 common and generally prevalent doctrine that continued 
 possession on the part of the vendor is prima facie 
 fraudulent, that is, it raises a presumption which may be 
 explained or rebutted. 1 
 
 §382. Actual belief. — There is another view already out- 
 lined in part to be taken of this question. In New York 
 fraud, in cases of alienations to defeat creditors, is 
 " deemed a question of fact and not of law." 2 In Coleman 
 v. Burr, 3 the claim was made that there was no finding 
 by the referee of a fraudulent intent ; but that, on the 
 contrary, he had found the whole transaction to be fair 
 
 1 See Chap. XVII. 3 93 N. Y. 31. 
 
 * 2 N. Y. R. S. 137, § 4.
 
 696 ACTUAL BELIEF. § 382 
 
 and honest. The court, however, observed that as the 
 referee has "found facts from which the inference of 
 fraud is inevitable, and although he has characterized the 
 transactions as honest and fair, that does not make them 
 innocent nor change their essential character in the eye 
 of the law." The assignor " must be deemed to have 
 intended the natural and inevitable consequences of his 
 acts, and that was to hinder, delay, and defraud his cred- 
 itors." There is nothing novel or unusual in this case. 
 The principle it enforces is founded in public policy, and 
 is very frequently applied. 1 It will be seen at a glance 
 that under this rule a fraudulent intention can be conclu- 
 sively fastened upon the debtor when no such wrongful 
 motive was present in his mind, and he was as free from 
 the design to defraud as our first parents were of knowl- 
 edge of sin before tasting the forbidden fruit. From the 
 necessity of the case the substituted fraudulent intent 
 prevails, because experience, from which the rule springs, 
 has shown that transactions, where this presumption 
 obtains, hinder and defraud creditors in enforcing pay- 
 ment of their claims. The difficulty of proving, other 
 than by circumstantial evidence, that a vendee had actual 
 knowledge of the vendor's fraud, or participated therein, 
 is manifest.' 2 The law labels certain facts and combina- 
 tions of circumstances as being sufficient to excite inquiry 
 and suspicion on the part of a purchaser, and supplements 
 this by asserting that in certain cases, means of knowl- 
 edge are the same thing as knowledge itself. 3 The prin- 
 ciple of imputing a fraudulent intent to an innocent 
 debtor is frequently invoked. Is there any legal absurd- 
 ity or moral wrong in imputing it to a vendee ? Do not 
 the necessities of the case often demand it? 4 It is 
 
 1 See §§ 8, 9. Wood v. Carpenter, 101 U. S. 135, 
 
 :,,c, 143. 
 
 * See g§9, 10.
 
 §§ 3 8 3> 384 PURCHASER WITH NOTICE. 697 
 
 respectfully contended that the test, " whether the ven- 
 dee did in fact know or believe that the vendor intended 
 to defraud his creditors," ! would furnish a very uncertain 
 and fluctuating- standard, and would not in fact constitute 
 a general rule of any utility. The intellectual and moral 
 perceptions are stronger or weaker in different men, 
 according to their natures and education, and a man mor- 
 ally obtuse might look upon a transaction as honest which 
 to the average person would appear to be manifestly 
 unfair or fraudulent. We have seen that a man may 
 commit a fraud without believing it to be a fraud. 2 
 
 §383. Purchaser with notice. — It is manifest that one 
 purchasing of the fraudulent grantee, with notice of the 
 prior fraud, takes the title subject to all the infirmities 
 with which it was affected in the hands of his grantor. 
 To hold otherwise would be equivalent to saying that 
 three conspiring together might accomplish a fraud which 
 would be impossible to two. 3 Purchasers pendente lite 
 are bound by the result of the litigation. 4 
 
 § 384. Purchaser with notice from bona fide purchaser. — 
 It is a well-settled rule in equity that a purchaser with 
 notice himself from a bona fide purchaser for a valuable 
 consideration, who bought without notice, may protect 
 himself under the first purchaser. 5 The only exception 
 to this rule is where the estate becomes revested in the 
 original party to the fraud, in which case the original 
 equity will re-attach to it in his hands/' A volunteer 
 
 1 Parker v. Conner, 93 N. Y. 118, v. Church, 25 Pa. St. 278. See Oliver 
 126. v. Piatt, 3 How. 401 ; Johnson v. 
 
 2 See g 8. Gibson. 116 111. 294, 6 N. E. Rep. 205. 
 
 3 Wilcoxen v. Morgan, 2 Col. 478. In Ryan v. Staples, 40 U. S. App. 749, 
 
 4 Tilton v. Cofield, 9?> U. S. 108; the court says: "One who buys 
 Allen v. Halliday, 28 Fed. Hep. 263. property from an innocent bona Jide 
 
 3 Allison v. Hagan, 12 New 55, 2 purchaser is protected by the good 
 
 Fonb. Eq. 149, 1 Story's Eq. Jur. 409. faith and innocence of his grantor, 
 
 6 1 Story's Eq. Jur. § 410 ; Church although he may himself have notice
 
 698 FRAUDULENT GRANTEE AS TRUSTEE. §§ 384a, 385 
 
 with notice, who derives his title from a bona fide pur- 
 chaser for value without notice, is unaffected by the fraud- 
 ulent character of the original transaction. This is neces- 
 sarily the case ; otherwise the party holding the perfect 
 title might be unable to dispose of it, and its value would 
 be greatly impaired. The party purchasing with notice 
 recovers in the riorht of his vendor. 1 
 
 £ 384a. Possession as notice. — Naturally where persons 
 are in actual occupation of real estate as a home a person 
 proposing to purchase is bound to make inquiry as to the 
 title of the possessors. a 
 
 S 385. Fraudulent grantee as trustee. — Elliott, J., observed 
 in a recent case in the Supreme Court of Indiana, that 
 "where property is fraudulently conveyed, the grantee 
 holds it as trustee for the creditors of the grantor." 3 In 
 Blair v. Smith 4 the court said : " Mrs. Smith received the 
 money as trustee, and as such must account for it. If she 
 had received a stock of goods from her husband pursuant 
 to a corrupt scheme to defraud his creditors, she certainly 
 could have been charged as trustee. The fact that she 
 received one species of property rather than another can 
 make no difference. The governing principle is the same, 
 no matter what kind of property the fraudulent participant 
 in the positive wrong receives. Mr. Pomeroy asserts, 
 what is well-known to be the law, that a fraudulent grantee 
 
 of antecedent defects or equities that - Kirby v. Talhnadge, 160 U. S. 879, 
 
 would have defeated his title if he 16 S. C. Rep. 349; Landes v. Brant, 
 
 bad been the first purchaser. Trull 10 How 348, 375; McLean v. Clapp, 
 
 v. Bigelow, 16 Mass. 406: Glidden v. 141 U. S. 429, 436, 12 S. ('. Rep. 39; 
 
 Hunt, 24 Pick. (Mass.) 221, 225; Noyes v. Hall, 97 U. S. 34 
 
 Boynton v. Rees, 8 Pick. (Mass.) 329 ; • Buck v. Voreis, 89 Ind. 117, 
 
 Funkhouser v. Lay, 78 Mo. 465; Blair v. Smith. 1 14 Ind. 125, 15 N. E. 
 
 \V I v. Cbapin, 13 N. Y. 509." Rep. 817: Chamberlain v. O'Brien, 46 
 
 See Pulton v. Woodman, 54 Miss. .Minn, so, is N. W. Rep. 447. 
 
 L58; Goshorn v. Snodgraes, 17 W. Va. 'ill Ind. 114, 125, 15 N. E. Rep. 
 
 717. 817.
 
 § 386 TITLE FROM FRAUDULENT VENDEE. 
 
 takes as trustee, and says: 'The lien upon the original 
 articles will extend to the resulting fund or the substituted 
 goods.'" ! 
 
 §386. Title from fraudulent vendee.— It was at one time 
 sought to establish the rule, at least in some of the author- 
 ities, that a bona fide purchaser from a fraudulent grantee 
 was not entitled to protection against the claims of the 
 creditors of the fraudulent grantor. 2 The argument in sup- 
 port of this docrine was to the effect that by the very terms 
 of the statute against fraudulent transfers, the conveyance 
 was pronounced utterly void, frustrate and of no effect, 
 and consequently a subsequent conveyance from the fraud- 
 ulent grantee could have no foundation on which to rest. 
 So also it was contended that it was against the policy of 
 the statute to afford protection to a subsequent purchaser 
 from the fraudulent grantee, though he parted with value, 
 in ignorance of any infirmity in the title he wasacquiring. 
 Quoting the words of Chancellor Kent : " Though the 
 debtor himself may fraudulently, on his own part, convey 
 to a bona fide purchaser, for a valuable consideration, yet 
 his fraudulent grantee cannot ; for it is understood that the 
 proviso in the 13 Eliz. does not extend to such subsequent 
 conveyance. The policy of that act would be defeated by 
 such extension. Its object was to secure creditors from 
 being defrauded by the debtor ; and the danger was, not 
 that he would honestly sell for a fair price, but that he 
 would fraudulently convey, upon a secret trust between 
 him and the grantee, at the expense of the creditors. If 
 the debtor sells, himself, in a case where the creditor has 
 no lien, and sells for a valuable consideration, he acquires 
 
 1 Citing Pomeroy's Eq. Jur., vol. 3, Rembert, 63 Ala. 570. A judgment- 
 §1291. creditor of a fraudulent grantee is not 
 
 2 Roberts v. Anderson, 3 Johns. Cb. a purchaser within the meaning of 
 (N. Y. ) 371 ; Preston v. Crofut, 1 the statute. Couse v. Columbia Pow- 
 Conn. 527, note ; Hoke v. Henderson, der Mfg. Co. (N. J. Ch.), 33 Atl. Rep. 
 3 Dev. (N. C.) Law 12 ; Thames v. 299 ; Devoe v. Brandt, 53 N. Y. 463.
 
 700 FRAUDULENT GRANTEE. § 387 
 
 means to discharge his debts ; and it may be presumed he 
 will so apply them. If his fraudulent grantee be enabled 
 to sell, the grantor cannot call those proceeds out of his 
 hands, and the grantee can either appropriate them to his 
 own use, or to the secret trusts upon which the frandulent 
 conveyance was made. There is more danger of abuse, 
 and that the object of the statute would be defeated, in 
 the one case than in the other." 1 The decree of Chan- 
 cellor Kent was reversed on error; 2 and it was dissented 
 from and the contrary doctrine held by Judge Story, in 
 Bean v. Smith, 3 and now in nearly if not all the States, 
 the doctrine is settled, that a fraudulent conveyance will 
 not, at the instance of the creditors, be vacated to the 
 prejudice of an innocent purchaser from the fraudulent 
 grantee. 4 Of course one who purchases from a fraud- 
 ulent a-rantee, with notice of the fraud and of the inval- 
 idity of his title, can acquire no better right than the 
 fraudulent grantee has. 5 
 
 § 387. Creditors of fraudulent grantee. — In Susong v. Wil- 
 liams ° the court held that where a conveyance was made 
 by a mother to her son upon a secret trust, to reconvey 
 to the grantor when peace should be re-established, the 
 motive of the grantor in making the conveyance being 
 fear of confiscation, the convevance was valid between the 
 parties, and the reconveyance, being without considera- 
 tion, was void as to the creditors of the son. This is 
 
 1 Roberts v. Anderson, 3 Johns. Ch. 12 Am. Rep. 603 ; Gordon v. 
 
 (N. Y.) 371, 378. Ritenour, 87 Mo. 61. It is held in 
 
 * Anderson v. Roberts, 18 Johns. Michigan that the burden to prove 
 
 (N. Y.) 515. good faith and payment of consider- 
 
 3 2 Mason 252 ; Sawyer v. Almand, ation rests on the purchaser from 
 89 Ga. 314, 15 S E. Rep. 315. the fraudulent grantee. Schaible v. 
 
 4 Sec note to Basset v. Nosworthy, Ardner, 98 Mich. TO, ."iO N. W. Rep. 
 2 Lea. Cas. in Eq. (4th Am. Ed.) 42; 1105. 
 
 Schaible v. Ardner, 98 Mich. 73.56N. 5 Spence v. Smith, 34 W. Va. 706, 
 
 W. Rep. L105; Sawyer \. Almand, 89 12 S. E. Rep. 828; Goshorn's Ex'r v. 
 
 Ga. 314, 1". S. E. Rep. 315; 4 Kent Snodgrass, 17 W. Va. 717. 
 
 I'M : Young v. Lathrop, 07 N. C. 63, c l Heisk. (Tenn.) 625.
 
 § 3 88 FRAUDULENT GRANTEE. ;<>[ 
 
 based upon the principle that the grantor, by making this 
 conveyance to her son, valid and effectual on its face, and 
 permitting it to be recorded, thereby held her son out to 
 the world as the owner of the property whereby he was 
 enabled to obtain credit. The principles of this case 
 would seem to render it unsafe for any owner of property 
 to allow the title of it for any cause to rest in another 
 person. Certainly it behooves the fraudulent debtor to 
 exercise care and good judgment in selecting a vendee 
 who not only will consummate the secret trust, but who 
 will not be frustrated in so doing by his own creditors. 
 This doctrine of apparent ownership may be variously 
 illustrated. In Budd v. Atkinson J it appeared that a 
 father bought a farm and caused it to be conveyed to his 
 son by a deed which was recorded. The son entered into 
 possession of the property and lived upon it. Subse- 
 quently he contracted debts on the credit of his ownership 
 of the farm. Then at his father's request he conveyed 
 the property to the father, without consideration, and 
 upon the ground that the latter had never intended to 
 give the farm to him, and that the son was not aware that 
 the conveyance had been made to him. The court held 
 that the deed to the father was fraudulent as against the 
 son's creditors. 2 Where, however, a fraudulent mort- 
 gagee reconveys the land to the fraudulent mortgagor, 
 before any lien attaches in favor of the creditors of the 
 former, they cannot subject the land to the payment of 
 their debts. 3 In Springfield Homestead Association v. 
 Roll 4 it was held that where a erantor j n a fraudulent 
 
 1 30 N. J. Eq. 530 of the vendor who have come in 
 
 2 Where a fund arising from prop- (although after the creditors of the 
 erty fraudulently assigned has been fraudulent vendee) are fully paid, 
 brought into court at the instance of Mullanphy Sav. Bank v. Lyle, T Lea 
 creditors of the vendor, creditors of (Tenn.) 431. 
 
 the fraudulent vendee will not be 3 Powell v. I vey, 88 N. C. 256. See 
 
 permitted to have satisfaction of their § 398. 
 
 -laims out of it until all the creditors 4 137 111. 205, 27 N. E. Rep. 184.
 
 7<D2 FRAUDULENT GRANTEES. §§ 388-3893 
 
 conveyance, which was duly recorded remained in open 
 possession and received a reconveyance from the fraudu- 
 lent grantee, which was not recorded, a subsequent mort- 
 gagee of the fraudulent grantee will be deemed to have had 
 notice of the title of the original grantor, arising out 
 of his possession, and the mortgage will be declared void 
 at the instance of such grantor. 
 
 ^ 388. Liability between fraudulent grantees.— I n Riddle v. 
 Lewis 1 the court decided that fraudulent grantees, as 
 between themselves, incur no responsibility to one another 
 by permitting the grantor to have or dispose of any part 
 of the property conveyed. 
 
 vj 389. Fraudulent grantee sharing in recovery. — Where a 
 fraudulent scheme or purchase, under which a creditor 
 obtained property of an insolvent debtor, is set aside in 
 a suit brought by another creditor against the fraudulent 
 vendee, the latter will not be allowed to share with the 
 complainant in the proceeds of the property. 2 But, as 
 we have shown, where an illegal preference is set aside, 
 the creditor who attempted to secure such preference is 
 not necessarily thereby debarred from participating in a 
 distribution of the debtor's property under a voluntary 
 assignment act, including the property thus illegally con- 
 veyed to him. 3 
 
 § 389a. Purchaser pendente lite. — Purchasers pendente 
 lite are chargeable with notice 4 of all the facts of which 
 the record of the suit would inform them. This rule 
 relates only to parties to the suit, and does not apply to 
 other separate suits or parties. 5 
 
 1 7 Bush (Ky.) 193. 3 White v. Cotzhausen, 129 U. S. 
 
 • Smith v. Craft, 11 Biss. 351 : Wil- 329. 9 S. C. Rep. 309. 
 
 son v. Horr, 15 Iowa 493. See Riggs 4 See Tilton v. Cofield. 93 U. S. 
 
 v. Murray, 2 Johns. Ch. (N. Y.) 582; 168; Allen v. Halliday, 28 Fed. Rep. 
 
 Murray v. Riggs, r> Johns. (N. Y.) 263. 
 
 5T1 ; Harris v. Summer, 2 Pick. h Stout v. Phillippi Mfg. & M. Co.. 
 
 (Mass.) 129. 41 W. Va. 339, 26 S. E. Rep. 571.
 
 CHAPTER XXV. 
 
 PREFERENCES. 
 
 ^ 390. Preferences legal. 
 
 391. Must represent actual debt. 
 391a. Preference on the eve of a gen- 
 eral assignment. 
 
 392. Vigilant creditors. 
 
 392a. Preferences in New York for 
 wages. 
 
 § 393. Compromises — Secret preferen- 
 tial agreements. 
 
 393a. Illegal composition preference. 
 
 394. Secret antecedent agreement to 
 prefer. 
 
 394a. Rights of attaching creditor. 
 
 ," Equity delights in equality." 
 
 § 390. Preferences legal. — In the absence of a bankrupt 
 act, the principle prevails in most of the States that an 
 insolvent debtor may make preferences 1 among his 
 creditors," even* to the extent of transferrino- all his 
 
 1 The debtor cannot delegate the 
 power to make preferences. Seger's 
 Sons v. Thomas Bros., 107 Mo. 643, 
 18 S. W . Rep. 33 ; Barnum v. Hemp- 
 stead, 7 Paige (N. Y.) 568. 
 
 2 Smith v. Craft, 11 Biss. 347 : Swift 
 v. Hart, 35 Hun (N. Y. ) 130, citing this 
 section; Sweetser v. Smith, 22 Abb. N. 
 C. (N. Y.) 320 and note, 5 N. Y. Supp. 
 378; Leavittv. Blatchford, 17N.Y.537; 
 Wan-en v. Jones, 68 Ala. 449 ; Craw- 
 ford v. Kirksey, 55 Ala. 282 Shealy 
 v. Edwards, 75 Ala. 418 ; Bishop v. 
 Stebbins, 41 Hun (N. Y) 246 ; Osgood 
 v. Thome, 63 N. H. 375 ; Low v. 
 Wortman, 44 N. J. Eq. 202, 7 Atl. 
 Rep. 654, 14 Id. 586; Walden v. 
 Murdock, 23 Cal. 550; Giddings 
 v. Sears, 115 Mass. 505 ; Ferguson v. 
 Spear, 65 Me. 279 ; French v. Motley, 
 63 Me. 328 ; Forrester v. Moore, 77 
 Mo. 651 ; Gomez v. Hagaman, 84 Hun 
 (N. Y.) 148, 32 N. Y. Supp. 453 : Cut- 
 
 ter v. Pollock, 4 N. Dak. 205, 59 N. 
 W. Rep. 1062 ; Drury v. Wilson, 4 
 App. Div. (N. Y.) 232, 38 N. Y. Supp. 
 538 ; Sweet v. Scherber, 42 111. App. 
 237 ; Jewell v. Knight, 123 U. S. 426, 
 434, 8 S. C. Rep. 193 ; People's Sav- 
 ings Bank v. Bates, 120 U. S. 556, 7S. 
 C. Rep. 679; Huntley v. Kingman, 
 152 U. S. 532, 14 S. C. Rep. 688 ; Saw- 
 yer v. Levy, 162 Mass. 190, 38 N. E. 
 Rep. 365 ; Warner Glove Co. v. Jen- 
 nings, 58 Conn. 74, 19 Atl. Rep. 239 ; 
 Hasie v. Connor, 53 Kans. 713, 37 Pac. 
 Rep. 128 ; Vietor v. Levy, 72 Hun (N. 
 Y.) 263. 25 N. Y. Supp. 644, aff'd 148 
 N. Y. 739, 42 N. E. Rep. 726 ; 
 Schroeder v. Bobbitt, 108 Mo. 289, 18 
 S. W. Rep. 1093 : Alberger v. Na- 
 tional Bank of Commerce, 123 Mo. 
 313, 27 S. W. Rep. 657 : Hoffman v. 
 Susemibl, 15 App. Div. (N. Y.) 405 ; 
 Warner v. Littleheld, 89 Mich. 329, 50 
 N. W. Rep. 721 ; Talcott v. Harder,
 
 704 
 
 PREFERENCES J.ECAE 
 
 §390 
 
 property to one creditor to the exclusion of the others 1 
 The common law favors and rewards the vigilant and 
 active creditor. The right of a debtor under the rules of the 
 common law to devote his whole estate to the satisfaction 
 of the claims of particular creditors, by confession of 
 judgment or otherwise, 3 results as Chief-Justice Marshall 
 declares, "from that absolute ownership which every man 
 claims over that which is his own." 3 If, while a man 
 
 11!) N. Y. 536, 23 N. E. Rep. 1056: 
 Glover v. Lee, 140 111 102, 29 N. E. 
 Rep. 680 ; Clark v. Krause, 2 Mackey 
 (D. C.)567; Richardson v. Marqueze, 
 59 Miss. 80 ; Eldridge v. Phillipson, 58 
 Miss. 270 ; Jewett v. Note ware, 30 
 Hun (N. Y.) 194 ; Totten v. Brady. 54 
 Md. 170; Preusser v. Henshaw. 49 
 Iowa 41 ; Atlantic Nat. Bank v. Tav- 
 ener, 130 Mass. 407 ; Savage v. Dowd, 
 54 Miss. 728: Shelley v. Boothe, 73 
 Mo. 74 ; Spaulding v. Strang, 37 N. Y. 
 135 ; Auburn Exchange Bank v. Fitch, 
 48 Barb. (N. Y.) 344; Allen v. Ken- 
 nedy, 49 Wis. 549, 5 N. W. Rep. 906 ; 
 Keen v. Kleckner, 42 Pa. St. 529 ; 
 Jordan v. White, 38 Mich. 253 ; Mur- 
 phy v. Briggs, 89 N. Y. 451 ; Hill 
 v. Bowman, 35 Mich. 191; Smith v. 
 Skeary, 17 Conn. 47; Frazer v. 
 Thatcher, 49 Tex. 26; Holbird v. An- 
 derson, 5 T. R. 235 ; Estwick v. Cail- 
 laud, 5 T. R 420 ; Goss v. Neale, 5 
 Moore 19. By statute in New York a 
 preference is prohibited except as re- 
 gards wages and salaries of em- 
 ployees, beyond one-third of the as- 
 signed estate, and if that amount is 
 exceeded, the penalty is not the anni- 
 hilation of the assignment, but the re- 
 duction of the preference to the pre- 
 scribed limit; Maass v. Falk, 14<i N. 
 Y. 40, 40 N. E. Rep. 504; Central 
 Nat. Bk. v. Seligman, 138 N. V. 485, 
 ::i N. E. Rep. 196, or as to the excess, 
 Cutter v. Hume, 62 Hun (N. Y.) 622, 
 17 X. Y. Supp. 255. The law toler- 
 
 ates preferences. Burr v. Clement, 9 
 Col. 1, 9 Pac. Rep. 633. A copartner- 
 ship may create preferences. Rich- 
 ards v. Leveille. 44 Neb. 38, 62 N. W. 
 Rep. 304 : Deitrich v. Hutchinson, 20 
 Neb. 52, 29. N. W. Rep. 247. 
 
 1 Richardson v. Marqueze, 59 Miss. 
 80; Drake v. Paulhamus, 29 U. S. 
 App. 522. 
 
 Purpose of bankrupt act. — The great 
 object of the late Bankrupt Act, so 
 far as creditors' were concerned, was 
 to secure equality of distribution of 
 the bankrupt's property among them. 
 It set aside transactions had within 
 four or six months prior to the bank- 
 ruptcy, depending upon their char- 
 acter, defeating or tending to defeat 
 such distribution. See Mayer v. 
 Hellman, 91 U. S. .101. The fact that 
 an insolvent debtor after the com- 
 mencement of bankruptcy proceed- 
 ings against him, conveyed property 
 by way of preference in violation of 
 the bankrupt act, is not under the 
 state law evidence of fraud. Talcott 
 v. Harder, 119 N. Y. 536, 23 N. E. 
 Rep. 1056. 
 
 - Victor v. Levy, 72 Hun (N. Y.) 263, 
 25 N. Y. Supp 644; afiTd 148 N. Y. 
 738, 42 N. E. Rep. 726. 
 
 :i Brashear v. West, 7 Pet. 608. 614 ; 
 Reed v. Mclntyre, 98 U. S. 510; 
 Mayer \ . Hellman, 91 IT. S. 500 ; Camp- 
 bell v. Colorado Coal & Iron Co., 9 
 Col. 65, 10 Pac. Rep. 248; Citizens' 
 Bank v. Williams, 128 N. Y. 77, 28
 
 §39° PREFERENCES LEGAL. yo$ 
 
 retains his property in his own hands, the right of giving 
 preferences should be denied, he would so far lose the 
 dominion over his own that he could not pay anybody, 
 because whoever he paid would receive a preference. 1 It 
 makes no difference that the creditor and debtor both 
 knew that the effect of the application of the insolvent's 
 estate to the satisfaction of the particular claim would be 
 to deprive other creditors of the power to reach the 
 debtor's property by legal process or enforce satisfaction 
 of their claims. 2 If there is no secret trust agreed upon or 
 understood between the debtor and creditor in favor of 
 the former, but the sole object of a transfer of property is 
 to pay or secure the payment of a debt, the transaction is 
 a valid one at common law. 3 It is no evidence of fraud 
 that a debtor against whom bankruptcy proceedings were 
 pending made a preferential transfer of property. 4 The 
 distinction is between a transfer of property made solely 
 by way of preference of one creditor over others, which is 
 legal, and a similar transfer made with a design to secure 
 some benefit or advantage from it to the debtor. 5 It is 
 an absurdity to say that a conveyance of property which 
 
 N. E. Rep. 33; Tompkins v. Hunter, of fraud?" Cited in Bamberger v. 
 
 149 N. Y. 117, 43 N. E Rep. 532; Schoolfield, 160 U. S. 160, 16 S. C. 
 
 Robinson Notion Co. v. Foot, 42 Neb. Rep. 225. 
 
 156, 60 N. W. Rep. 316. 3 In Smith v. Craft. 123 U. S. 436, 8 
 
 1 Tillou v. Britton, 9 N. J. Law 120, S. C. Rep. 196, it was held that a bill 
 cited in Campbell v. Colorado Coal & of sale of a stock of goods in a shop, 
 Iron Co.. 9 Col. 65, 10 Pac. Rep. 248. by way of preference of a bona fide 
 
 2 Wood v. Dixie, 7 Q. B. 892. In creditor, was not rendered fraudulent 
 Hodges v. Coleman, 76 Ala. 103, 119, against other creditors as matter of 
 the court says : " What injury can law by containing a stipulation that 
 such secret motive do to a non-pre- the purchaser should employ the 
 ferred creditor? The act, as we have debtor at a reasonable salary to wind 
 seen, is lawful. Can human tribunals up the business. 
 
 set aside a transaction, lawful in itself, 4 Talcott v. Harder. 119 N. Y. 536, 
 
 because the actors had an evil mind 23 N. E. Rep. 1056. 
 
 in doing it ? Can there be fraud in 5 Banfield v. Whipple. 14 Allen 
 
 doing a lawful act, even though it be (Mass.) 13; Giddings v. Sears, 115 
 
 prompted by an evil motive or badges Mass. 507. 
 
 45
 
 706 PREFERENCES LEGAL. § 39O 
 
 pays one creditor a just debt and nothing more, is fraudu- 
 lent as against other creditors of the common debtor. 1 
 " The mere preference in payment of one honest cred- 
 itor over another was never at common law evidence of 
 a fraudulent intent." 2 In a fair race for preference if a 
 creditor by diligence secures an advantage, it may be 
 maintained ; but if his purpose is not to collect the claim, 
 but to help the debtor cover up his property, he cannot shield 
 himself by showing that his debt was bona fide? Rela- 
 tionship will not take away the right to make a preference. 
 We may here observe that an insolvent debtor may prefer 
 his daughters to the extent that they are his creditors as 
 his wards, although such preference may leave the debtor 
 without the means of paying his other debts. 4 The same 
 rule applies to a wife, 5 and between father and son, 6 and 
 daughter. 7 In a controversy recently before the Supreme 
 Court of the United States, 8 construing the statute of 
 Illinois, it was decided that a preferential disposition of 
 all the assets of an insolvent debtor operated as a general 
 assignment. The decree appealed from entirely excluded 
 the preferred creditors from participating in the fund. 
 In modifying this decree Mr. Justice Harlan said : "The 
 mother, sisters, and brother of Alexander White, Jr., were 
 his creditors, and, so far as the record discloses, they only 
 sought to obtain a preference over other creditors. But 
 their attempt to obtain such illegal preference ought not 
 
 1 Auburn Exchange Bank v. Fitch, v. Croco, 46 Kan. 629, 26 Pac. Rep. 
 
 48 Bail) ( X. Y ) 354. 942 ; Rockford Boot & Shoe Mfg. Co. 
 
 ! Abegg v. Bishop, 142 N. Y. 289, v. Mastin, 75 Iowa 112, 39 N. W. Rep. 
 
 36 N. E. Rep. 1058. 21!). 
 
 Smith v. Schwed, 9 Fed. Rep. 483. ' Rockland Co. v. Summerville, 139 
 
 See David v. Birchard, 53 Wis. 494, Ind. 09., 39 N. E. Rep. 307: Ban- v. 
 
 1<» N. W. Rep. 557 : Menton v. Adams, Church, 82 Wis. 382, 52 N. W. Rep. 
 
 49Cal. 620. 591. 
 
 1 Mirun v. National Bank, 104 U. S. : Nelson v. Kinney, 93 Trim. 428, 
 
 543. 25 S. W. Rep. 100. 
 
 Laird v. Davidson, 124 Ind. 412. 8 White v. Cotzhausen, 129 U. S. 
 
 25 N. E. Rep. 7 . Winfield Nat. Bank 345, 9 S. C. Rep. 309.
 
 §§39 I »39 Ia ACTUAL DEBT. JOJ 
 
 to have the effect of depriving them of their interest 
 under the statute, in the proceeds of the property in 
 question, or justify a decree giving a prior right to the 
 appellee. It was not intended, by the statute, to give 
 priority of right to the creditors who are not preferred. 
 All that the appellee can claim is to participate in such 
 proceeds upon terms of equality with other creditors." A 
 preference will not be overturned because the creditor on 
 receiving payment illegally promises as a part of the 
 transaction to compound a felony of which the debtor is 
 guilty. 1 
 
 sj 391. Must represent actual debt. — The preferred cred- 
 itor must have a valid subsisting- claim against the debtor 
 which the transfer was given to satisfy or secure. In 
 Union National Bank v. Warner 2 the conveyance was 
 made by a father to his sons, who were, however, not 
 creditors. The mutual fraudulent intent being shown, the 
 conveyance was annulled, their agreement to pay some of 
 his debts being deemed a part of the fraudulent scheme 
 which fell with it. So in Davis v. Leopold, 3 the con- 
 veyance by a husband through a third person to his wife 
 was set aside, the wife not being a creditor; 4 while in 
 Crowninshield v. Kittridge 5 a mortgage was annulled 
 because it was given for a fictitious or excessive amount, 
 and executed for the double purpose of securing a bona 
 fide debt and preventing creditors from attaching the 
 property. This does not contradict the general rule that 
 debtors may prefer the genuine claims of relatives. 6 
 
 § 391a. Preferences on the eve of a general assignment. — 
 The fact that a preference is given on the eve of making 
 
 1 Traders' Nat. Bank v. Steere, 165 4 Compare Jewett v. Noteware, 30 
 Mass. 393, 43 N. E. Rep. 187. Hun (N. Y.) 194. 
 
 3 12 Hun (N. Y.) 306. 6 7 Met. (Mass.) 522. 
 
 B 87 N. Y. 620. 6 Rockland Co. v. Summerville, 139 
 
 Ind. 700, 39 N. E. Rep. 307.
 
 708 VIGILANT CREDITORS. § 392 
 
 a general assignment, as already shown, does not render it 
 fraudulent. 1 In New York, where preferences in excess 
 of a certain proportion of the assets are prohibited in 
 general assignments, ~ it has been held that where, shortly 
 before the assignment was executed, assets in excess of 
 such proportions have been transferred to a bona fide 
 creditor, who was ignorant of the intention to make an 
 assignment, the transfer would be upheld. 3 It would be 
 different if the assignee knew of such intention. 4 
 
 §392. Vigilant creditors- — The general rule in equity 
 only requires that the fund acquired by a creditor's pro- 
 ceeding should be distributed among the creditors pro 
 rata? And where a creditor has not obtained any lien 
 at law, not having obtained any judgment, he is not enti- 
 tled to a priority over the other creditors. 6 The com- 
 mencement of a creditor's suit in chancery by a judgment- 
 creditor, with execution returned unsatisfied, gives him a 
 lien upon all the equitable assets of the debtor, 7 and the 
 same general rule is applied to supplementary proceed- 
 ings. 8 An equitable lis pendens is acquired by filing the 
 bill. 9 The first party to move is rewarded as a vigilant 
 creditor, the commencement of his suit being regarded as 
 an actual levy upon the equitable assets of his debtor, 10 
 
 1 Dalton v. Stiles, 74 Mich. 726, 42 89 Va. 755. 17 S. E. Rep. 229. Ex- 
 
 N. W. Rep. 169. amine Freedman's Savings & Trust 
 
 *Ch. 503, Laws of 1887. Co. v. Earle, 110 U. S. 710,4 S. C. 
 
 3 Manning v. Beck. 129 N. Y. 1, 29 Rep. 226 ; Safford v. Douglass, 4 Edw. 
 
 N. E. Rep. 90 ; Maass v. Falk. 146 N. Ch. (N. Y.) 538; Boynton v. Rawson, 
 
 Y. 34, in X. E. Rep. 504. 1 Clarke Ch. (N. Y.) 592; Hone v. 
 
 * Berger v. Varrelmann, 127 N. Y. Henriquez, 13 Wend. (N. Y.) 244: 
 
 286, 27 N. E. Hep. 1065. Voorhees v. Seymour. 26 Barb. (N. 
 
 '■> Robinson v. Stewart, 10 X. Y. 196. Y.) 580. 
 
 6 Ibid. 8 Edmondston v. McLoud, 16 N. Y. 
 
 ■storm v. Waddell, 2 Sandf. Ch. 544. See § 61. 
 
 (N. Y.) 494 ; Brown v. Nichols. 42 N. 9 Rothschild v. Kohn,93 Ky. 107. 19 
 
 Y. 26 ; Werborn v. Kahn. 93 Ala. 201, S. W. Rep 180. 
 
 9 So. Rep. 729: Wallace v. Treakle, " Lynch v. Johnson, 48 N. Y. 33; 
 
 27Gratt. (Va.) 479 ; Davis v. Bonney, The Deposit Nat. Bank v. Wickham,
 
 § 39 2 VIGILANT CREDITORS. 709 
 
 and entitles him to a priority, 1 unless he elects to bring 
 the action for the benefit of himself and others similarly 
 situated. 2 A purchaser pendente lite with notice, will 
 take subject to the rights of the complainant. 3 " The 
 vigilant creditor, pursuing his claim, acquires a preferable 
 equity, which attaches and becomes a specific lien by the 
 filing of his bill." 4 But it has been held in other cases 
 that all creditors who make reasonable and appropriate 
 application will be let in, 5 and that all creditors should 
 be permitted to participate upon due application in the 
 proceeds of property fraudulently conveyed. This pref- 
 erential right is said in some cases to be as well defined 
 and as exclusive of the claims of other creditors as is the 
 right secured by a judgment lien upon the debtor's prop- 
 erty, 7 but the cases are not uniform. Where a party 
 purchased lands pending a suit to reach the judgment- 
 debtor's interest therein, and entered into possession and 
 made improvements, such a grantee is not entitled to 
 have his improvements discharged from the lien of the 
 decree rendered against the lands. 8 Equity will not 
 relieve a party from a risk which he voluntarily assumes. 
 
 44 How. Pr. (N. Y.) 422 ; Roberts v. 4 Burt v. Keyes, 1 Flippin 72. See 
 
 Albauy & W. S. R. R. Co., 25 Barb. Douglass v. Huston, 6 Ohio 156 ; Miers 
 
 (N. Y.) 662 ; Field v. Sands, 8 Bosw. v. Zanesville & M. Turnpike Co., 13 
 
 (N. Y.) 685. Ohio 197 ; Corning v. White, 2 Paige 
 
 •George v. Williamson, 26 Mo. (N. Y.) 567 ; George v. Williamson, 26 
 190 ; 2 Hoffman's Ch. Pr. 114 ; Corn- Mo. 190 ; Albany City Bank v. Sober- 
 ing v. White, 2 Paige (N. Y.) 567; merhorn, 1 Clarke's Ch. (N. Y.) 297; 
 Neal v. Foster, 13 Sawyer 237. As Storm v. Waddell, 2 Sandf. Ch. (N. 
 between various creditors who bring Y.) 494. 
 
 suit, their priority is determined by 5 Pendleton v. Perkins, 49 Mo. 565 ; 
 
 the date of their suit. Baer v. Doherty v. Holliday, 137 Ind. 282, 32 
 
 Wilkinson, 35 W. Va. 422, 14 S. E. N. E. Rep. 315, 36 Id. 907. 
 
 Rep. 1; Stamper v. Hibbs, 94 Ky. 358, 6 Voorhees v. Carpenter, 127 Ind. 
 
 22 S. W. Rep. 607 ; Fordyce v. Hicks. 300, 26 N. E. Rep. 838 ; Doherty v. 
 
 76 Iowa 41, 40 N. W. Rep. 79. Holliday, 137 Ind. 282, 32 N. E. Rep. 
 
 8 Claflin v. Gordon, 39 Hun (N. Y) 315, 36 Id. 907. 
 
 56. 1 Burt v. Keyes, 1 Flippin 72. 
 
 3 Jeffres v. Cochrane, 47 Barb. (N. 8 Patterson v. Brown, 32 N. Y. 81. 
 Y.) 557.
 
 /IO PREFERENCES IN NEW YORK. § 392a, 393 
 
 This is a phase of the general rule that no allowance will 
 be made for improvements placed upon land after suit 
 brought. 1 The Court of Chancery does not, however, 
 give any specific lien to a creditor at large against his 
 debtor, further than he has acquired at law. It is only 
 when he has obtained a judgment and execution in seek- 
 ing to subject the property of his debtor in the hands of 
 third persons, or to reach property not accessible to an 
 execution, that a legal preference is acquired which a 
 Court of Chancery will enforce 2 In New York "the 
 law gives no preference to a vigilant creditor in the estate 
 of a decedent." 3 
 
 § 392a. Preferences in New York for wages. — By statute 
 in New York 4 it is provided that, in all assignments 
 made pursuant to the act, the wages or salaries of 
 employes shall be preferred before any other debt. The 
 money must be actually due for wages and not for money 
 loaned. 5 The Court of Appeals held that an assign- 
 ment was not rendered void by reason of the omission to 
 insert therein a clause giving such preference, as the 
 instrument would be read in connection with the statute 
 with the same effect as though the provisions formed a 
 part of it. 
 
 § 393- Compromises — Secret preferential agreements. — The 
 law has ever scrupulously guarded the integrity and good 
 faith required in the general compromises of creditors 
 with their debtors. From considerations of public policy 
 and sound morals, transactions of this character should be 
 conducted with truth and fairness, lest any undue secret 
 advantage be secured to one creditor at the expense of 
 
 1 Sedgwick & Wait on Trial of Title amended by Laws of 1884, Ch. 
 to Land, 2.1 <•<!., g 705. 328. 
 
 2 Day v. Washburn. 24 How. 355. 5 Clark v. Andrews, 19 N. Y. 
 
 3 Lichtenberg v. Herdtfelder. 103 Supp. 211. 
 
 X. Y. 306, 8 N. E. Rep. 526. • Richardson v. Thurber, 104 N. Y. 
 
 4 Laws of 1877. Ch. 466, § 29, as 606, UN. E. Rep. 133.
 
 §393 compromises. 711 
 
 another. 1 Attempts to thwart the application of these 
 salutary principles are common and when detected will 
 be overthrown. 2 In Cockshot v. Bennet, 3 the defendants 
 being indebted to plaintiffs and other creditors, a com- 
 promise was effected at 11^. in the pound as to all cred- 
 itors except plaintiffs, who refused to sign the deed unless 
 the defendants gave them a note for the remaining 9^. in 
 the pound. The note was accordingly given, and defend- 
 ants made a subsequent promise to pay it. Lord Kenyon, 
 in defeating a recovery, placed his opinion upon the 
 foundation that the note was a fraud upon the creditors 
 who were parties to the deed by which their debts were 
 to be cancelled in consideration of receiving iu. in the 
 pound, and observed that " all the creditors being 
 assembled for the purpose of arranging the defendants' 
 affairs, they all undertook and mutually contracted with 
 each other that the defendants should be discharged from 
 their debts after the execution of the deed." Upon the 
 point, as to the revival of the debt by a subsequent 
 promise, the learned Chief-Justice said • "Contracts not 
 
 founded on immoral considerations may be revived 
 
 But this transaction is bottomed in fraud, which is a 
 species of immorality, and not being available as such, 
 cannot be revived by a subsequent promise." Mr. Justice 
 Ashurst remarked in the same case that the creditors 
 "were induced to enter into the agreement on principles 
 of humanity in order to discharge the defendants from 
 their incumbrances; and if they had not thought that 
 such would have been the effect, they would not probably 
 have agreed to sign the deed, but each would have 
 
 1 Fenner v. Dickey, 1 Flippin 30. to make disclosures concerning his 
 
 See White v. Kuntz, 107 N. Y. 518, property. Graham v. Meyer, 99 N. 
 
 14 N. E. Rep. 423 ; Hanover Nat. Bank Y. 611, 1 N. E. Rep. 143. 
 
 v. Blake, 142 N. Y. 404, 37 N. E. Rep. s Bliss v. Matteson, 45 N. Y. 22. 
 
 519. The debtor seeking a com- 3 2 T. R. 763. 
 position is not bound unless requested
 
 7i2 compromises. § 393 
 
 endeavored to obtain payment of his whole debt. There- 
 fore I think that this security is not merely voidable, but 
 
 absolutely void The note was void on the ground 
 
 of fraud, and any subsequent promise must be nudum 
 pactum" So in Jackson v. Lomas, 1 a secret agreement 
 was made by a debtor with a creditor to pay an additional 
 sum, the consideration of which agreement was that the 
 creditor should sign a composition deed with the other 
 creditors. Mr. Justice Buller declared the secret agree- 
 ment absolutely void, and refused to enforce it. 2 The 
 principle of these English cases is upheld in the early case 
 of Payne v. Eden, 3 in New York, where a note given in 
 consideration of the creditors signing the insolvent's peti- 
 tion to make, up the statutory proportion was adjudged 
 void. And in Wiggin v. Bush, 4 a note executed by a 
 debtor to his creditor, to induce him to withdraw his 
 opposition to the debtor's discharge under an insolvent 
 law was adjudged void. So a note given by a third per- 
 son to a creditor in consideration of his withdrawing all 
 opposition to the discharge of his debtor as a bankrupt, 
 even though without the knowledge of the debtor, is 
 void. 5 In Case v. Gerrish, 6 Chief-Justice Shaw, in 
 deciding upon an agreement of this character where a 
 note had been ^iven, said : " This was an unwarrantable 
 coercion upon the debtor, and a fraud upon the other 
 creditors, which renders the note void." 
 
 1 4 T. R. 166. 3 3 Caines (N. Y.) 213. 
 
 * See Jones v. Barkley, 2 Doug. 4 12 Johns. (N. Y.) 306. 
 
 696; Sumner v. Brady, 1 H. Bla. ''Bell v. Leggett, 7 N. Y. 176. See 
 
 647; Jackson v. Duchaire, 3 T. R. Waite v. Harper, 2 Johns. (N. Y.) 
 
 551 , Feise v. Randall, 6 T. R. 146; 386; Tuxbury v. Miller, 19 Johns. 
 
 Leicester v. Rose, 4 East 372 ; Hoi mer (N. Y.) 311 ; Drexler v. Tyrrell, 15 
 
 v. Yiner, 1 Esp. 131 ; Knight v. Hunt, Nev. 132 ; York v. Merritt, 77 N. C. 
 
 5 Bing. 4:i2 ; Howson v. Hancock, 8 214 ; Sharp v. Teese, 9 N. J. Law 
 
 T. R. 575 ; Solinger v. Earle, 82 N. Y. 352. 
 
 393. 6 15 Pick. (Mass.) 49.
 
 §§ 393 a > 394 ILLEGAL COMPOSITION PREFERENCE. 713 
 
 § 393a. Illegal composition preference. — When a creditor 
 signs a composition agreement under a secret agreement 
 with the debtor, giving him a preference or some undue 
 advantage over other creditors, this does not as to such 
 creditor nullify the composition agreement. The secret 
 agreement to prefer is fraudulent and void and the com- 
 position agreement stands. 1 
 
 Gray, J., said : " It seems wiser simply to regard the 
 secret agreement as one which the law avoids for its 
 fraud. The creditor makes it with the risk of its worth- 
 lessness, if repudiated, and the debtor makes it with the 
 peril that its discovery will furnish cause for his other 
 creditors to avoid the composition agreement." 3 
 
 § 394. Secret antecedent agreement to prefer. — An agree- 
 ment between a debtor and creditor that, in consideration 
 of receiving a loan, the debtor will prefer such creditor in 
 the event of insolvency, has been considered to be in the 
 nature of a secret lien, which is a fraud upon subsequent 
 creditors of the debtor who are ignorant of the arrange- 
 ment, and a subsequent disposition of the property in 
 accordance with such an arrangement can be avoided by 
 such subsequent creditors. 3 We doubted the soundness of 
 this conclusion in our first edition, and the case cited has 
 since been overturned 4 and its conclusions departed from. 5 
 In National Park Bank v. Whitmore, 6 Earl, }., said: "A 
 debtor may obtain credit by a promise to pay in the future, 
 either in cash or in property, or by promising to give his 
 check or an indorsed note, or a confession of judgment. 
 
 ■Hanover Nat. Bank v. Blake, 142 4 17 Fed. Rep. 705. 
 N. Y. 404. 37 N. E. Rep. 519. 5 See National Park Bank v. Whit- 
 
 * Hanover Nat. Bank v. Blake, 142 more, 104 N. Y. 304, 10 N. E. Rep. 
 
 N. Y. 404, 415. 37 N. E. Rep. 519. 524, and cases cited. Compare (lark 
 
 See White v Kuntz, 107 N. Y. 518, v. Andrews, 19 N. Y. Snpp. 211: 
 
 14 N. E. Rep. 423. Pierce Steam Heating Co. v. Ransom, 
 
 3 See Smith v. Craft, 11 Biss. 340, 16 App. Div. (N. Y.) 200. 
 123 U. S. 441, 8 S. C. Rep. 196. c 104 N. Y. 303, 10 N. E. Rep. 524.
 
 714 SECRET ANTECEDENT AGREEMENT. § 394 
 
 Neither such a promise, nor its performance, is a legal fraud 
 upon any one ; and why may he not promise to give 
 security upon the property purchased, or other property ? 
 Such a promise, honest in fact, has never been held to be 
 a fraud or to work a fraud upon creditors. Security hon- 
 estly given in pursuance of such a promise relates back to 
 the date of the promise, and, except as to intervening rights, 
 is just as good and effectual as if given at the date of the 
 promise ; and it has generally been so held, even in bank- 
 ruptcy proceedings. 1 But here the agreement was to make 
 the preferential assignment in case it became necessary 
 to protect the creditor ; and it is further claimed that 
 such a conditional agreement is a fraud upon other cred- 
 itors. A failing debtor may make an assignment prefer- 
 ring one or more creditors because he is under a legal, 
 equitable, or moral obligation to do so, or he may do it 
 from mere caprice or fancy, and the law will uphold such 
 an assignment honestly made. If he may make such an 
 assignment without any antecedent promise, why may he 
 not make it after and in pursuance of such a promise ? 
 How can an act otherwise legal be invalidated because 
 made in pursuance of a valid or invalid agreement hon- 
 estly made ? In Smith v. Craft, 2 Judge Gresham held 
 that such a conditional agreement for a future preference 
 was a fraud upon creditors. But in the same case, 3 upon 
 a rehearing, Judge Woods held that the same agreement 
 was not fraudulent, and in a very satisfactory opinion 
 showed that such an agreement as we have here, for a 
 future preference in case of insolvency, is not a legal 
 fraud upon creditors. 4 This agreement did not create 
 
 1 Citing Bump's Bankruptcy [10th ner, L. R. 13 Ch. Div. 245 ; Mercer v. 
 
 ed.] 821 ; Forbes v. Howe, 102 Mass. Peterson, L. R. 2 Ex. 304, L. R. 3 Ex. 
 
 127 : Bank of Leavenworth v. Hunt, 104. 
 
 11 Wall. 391; Burdick v. Jackson, 7 * 11 Biss. 340. 
 
 Hun (N. Y.) 488; Ex parte Ames, 1 3 17 Fed. Rep. 705. 
 
 Lowell's Dec. 561; Ex parte Fisher, * Citing Walker v. Adair, 1 Bond 
 
 L. R. 7 Ch. App. 636 ; Ex parte Kil- 158 ; Anderson v. Lachs, 59 Miss. Ill ;
 
 § 394a RIGHTS OF ATTACHING CREDITOR. 715 
 
 any lien, legal or equitable, upon the property of the 
 defendants. It was not an agreement for a future lien 
 upon the specific property, which is sometimes held to 
 create an equitable lien which may be enforced in equity. 
 It was not an agreement for any lien at all. It was sim- 
 ply an agreement, in case of an assignment by the 
 defendants, to prefer Whiting. The agreement did not 
 bind defendants' property, nor encumber it, but left it 
 subject to all the remedies of their creditors, and it 
 neither hindered nor delayed those creditors. They 
 could have made the same assignment without a previous 
 agreement, and it is impossible to perceive how the agree- 
 ment worked any legal harm to any one. It is not 
 important to determine whether this was an agreement 
 of which a court of equity would enforce specific per- 
 formance, but we do not believe it was, and think it must 
 stand both in law and equity like an agreement to pay at 
 a future day." 
 
 § 394a. Rights of attaching creditor. — A preference given 
 by an insolvent debtor to a bona fide creditor cannot be 
 avoided by an attaching creditor in Massachusetts, 
 whether the form of preference which is adopted is a 
 general assignment for the benefit of such creditors as 
 should assent thereto, or an assignment for the benefit 
 of certain specified creditors, or an assignment directly 
 to a single creditor. Otherwise it would simply amount 
 to giving a preference to an attaching creditor, instead 
 of to the creditor or creditors selected by the debtor. 1 
 
 Spaulding v. Strang, 37 N. Y. 135, 3S ' Sawyer v. Levy, 162 Mass. 190, 
 
 N. Y. 9 ; Haydock v. Coope, 53 N. Y. 38 N E. Rep. 365, and cases cit<><l. 
 68.
 
 CHAPTER XXVI. 
 
 CONVEYANCES VALID BETWEEN THE PARTIES 
 RELIEF TO DEFRAUDED GRANTORS. 
 
 £ 395. Conveyances binding between 
 the parties. 
 
 396. The theory — No reconveyance. 
 
 397. Massachusetts cases. 
 
 398. General rule and policy. 
 
 399. When aid will be extended to 
 
 grantors. 
 
 400. Cases and illustrations. 
 
 401. The cases just considered ex- 
 
 ceptional. 
 
 £ 402. Grantee enforcing fraudulent 
 deed . 
 
 403. Fraud upon debtor as distin- 
 
 guished from fraud upon 
 creditors. 
 
 404. Declaring deed a mortgage. 
 404o. Redeeming mortgaged prop- 
 erty. 
 
 " That court is not a divider of the inheritance of iniquity between .... two confederates 
 in fraud." Mr. Justice Lamar in Dent v. Ferguson, 132 U. S. 50, 66, 10 S. C. Rep. 13. 
 
 §395- Conveyances binding between the parties. — The 
 statute under which fraudulent and voluntary convey- 
 ances may be set aside, 13 Eliz. c. 5, ordinarily has no 
 application to the parties to such instruments or their 
 representatives. In Jackson v. Garnsey, 1 Spencer, C. J., 
 in referring to this subject, used these words : " As 
 between the parties they are expressly excluded from its 
 operation, and are left as they stood at the common law ; 
 and before the statute the heir could never set up his 
 title against the voluntary alienee of his ancestor, nor 
 call upon him for contribution, where both were amenable 
 to the creditors of the ancestor as ter-tenants ; nor will 
 courts of equity assist the party making a voluntary 
 conveyance or his representative claiming as such by 
 
 1 16 Johns. (N. Y.) 189. See Harvey Y. 552, 27 N. E. Rep. 247 ; Farrar v. 
 
 v. Varney, 9ft Mass. 118 ; Hudson v. Bernheim, 41 U. S. App. 172, 21 ( '. ( '. 
 
 White, 17 R. I. 528, 23 Atl. Rep. 57 ; A. 264. See £§ 112, 113, 121. 
 Knower v. Central Nat. Bk., 124 N.
 
 8 395 
 
 CONVEYANCES HIND INC. 
 
 717 
 
 setting them aside." The cases holding such convey- 
 ances binding between the parties are numerous. 1 The 
 same rule appertains to general assignments which, 
 though voidable by creditors, are always valid between the 
 immediate parties.- The conveyance as between the par- 
 ties stands upon the same ground as if a full and adequate 
 consideration had been paid. 3 In conformity with this rule 
 
 1 See Mercer v. Mercer, 29 Iowa 557 ; 
 Tan turn v. Miller, 11 N. J. Eq. 551 : 
 Bonesteel v. Sullivan, 104 Pa. St. 9 ; 
 Lerow v. Wilmarth, 9 Allen (Mass.) 
 386; Bullitt v. Taylor 34 Miss. 708, 
 737 ; Armington v. Rau, 100 Pa. St. 
 168 ; Haak's Appeal, 100 Pa. St. 62 ; 
 Doe d. Abbott v. Hurd, 7 Blackf. 
 (Ind.) 510 ; McGuire v. Miller, 15 Ala. 
 394, 397; Williams v. Higgins, 69 
 Ala^ 523 ; Dyer v. Homer, 22 Pick. 
 (Mass.) 253 ; Keel v. Larkin,83 Ala, 142, 
 3 So. Rep. 296 ; Songer v. Partridge, 
 107 111. 529 ; Barrow v. Barrow, 108 
 Ind. 345, 9 N. E. Rep. 371 ; Reichart 
 v. Castator, 5 Binn. (Pa.) 109, 6 Am. 
 Dec. 402, and note ; Newell v. Newell, 
 34 Miss. 385 ; Shaw v. Millsaps, 50 
 Miss. 380 ; Davis v. Swanson, 54 Ala. 
 277; Noble v. Noble, 26 Ark. 317: 
 Lloyd v. Foley, 6 Sawyer 426 ; Van 
 Wy v. Clark, 50 Ind. 259 ; Crawford 
 v. Lehr, 20 Kans. 509 ; Peterson v. 
 Brown, 17 Nev. 173, 30 Pac. Rep. 697 ; 
 Allison v. Hagan, 12 Nev. 38 ; Stewart 
 v. Piatt, 101 .U. S. 738; Harmon v. 
 Harmon, 63 111. 512; Graham v. Rail- 
 road Co., 192 U. S. 148; George v. 
 Williamson, 26 Mo. 190 ; Sharpe v. 
 Davis, 76 Ind. 17 ; Nichols v. Patten, 
 18 Me. 231 ; Ellis v. Higgins, 32 Me. 
 34 ; Bush v. Rogan, 65 Ga. 321 ; 
 Goodwyn v. Goodwyn, 20 Ga. 600 ; 
 McCleskey v. Leadbetter, 1 Ga. 551 ; 
 Muller v. Balke, 154111. 110, 39 N. E. 
 Rep. 658; Francisco v. Aguirre, 94 
 Cal. 181, 29 Pac. Rep. 495 : Springfield 
 Homestead Assoc, v. Roll, 137 111. 
 
 205, 27 N. E. Rep. 184 ; Dent v. Fer- 
 guson, 132 U. S. 50, 10 S. C, Rep. 13 ; 
 Kirkpatrick v. Clark, 132 111. 342, 24 
 N. E. Rep. 71; Hudson v. While. 17 R. 
 I. 519, 23 Atl. Rep. 57 ; Kitts v. Will- 
 son, 130 Ind. 492, 29 N. E. Rep. 401 ; 
 Phenix Ins. Co. v. Fielder, 133 Ind. 
 557, 33 N. E. Rep. 270 : Weatherbee v. 
 Cockrell, 44 Kan. 380, 24 Pac. Rep. 
 417 ; Doughty v. Miller, 50 N. J. 
 Eq. 529, 25 Atl. Rep. 153 ; Stephens 
 v. Adair, 82 Tex. 214, 18 S. W. 
 Rep. 102. In Barrow v. Barrow. 108 
 Ind 345, 9 N. E. Rep. 371, it was 
 held that where a wife joined her 
 husband in conveying his land in 
 fraud of creditors, she could not, 
 after obtaining a divorce, have the 
 conveyance set aside, and the land 
 subjected to the payment of her judg- 
 ment for alimony. 
 
 5 Ames v. Blunt, 5 Paige (N. Y.) 13 ; 
 Mills v. Argall, 6 Paige (N. Y.) 577 ; 
 Smith v. Howard, 20 How. Pr. (N. Y.) 
 121. 126; Bradford v. Tappan, 11 
 Pick. (Mass.) 76 ; Van Winkle v. Mc- 
 Kee, 7 Mo. 435 ; Bellamy v. Bellamy, 
 6 Fla. 62 ; Rumery v. McCulloch, 54 
 Wis. 565, 12 N. W. Rep. 65. Sec 
 Chap. XXI. 
 
 3 Chapin v. Pease, 10 Conn. 73. 
 
 Relaxation of the rule. — Bowes v. 
 Foster, 2 H. & N. 779. seems to evi- 
 dence an intention to relax this salu- 
 tary rule. Plaintiff being in financial 
 difficulties, and fearing proceedings 
 on the part of his creditors, made an 
 agreement with defendant, who was
 
 7 i8 
 
 CONVEYANCES BINDING. 
 
 395 
 
 it is held that a debtor who has conveyed his property in 
 order to defraud his creditors has no standing in a court 
 of equity to question the fairness or adequacy of price 
 obtained at the public sale of the premises under a cred- 
 itor's bill to reach such property. 1 It is not material 
 whether the party is alleging the fraud as matter of 
 defense, or as a ground of action, 2 for, as was said by 
 Lord Mansfield, 3 " no man shall set up his own iniquity 
 as a defense, any more than a cause of action." 4 The 
 same rule applies between the heirs of the original 
 parties. 5 The grantor cannot avoid the application of this 
 rule by purchasing through another, under a subsequent 
 
 also a creditor, that a pretended sale 
 of a stock of goods should be made to 
 defendant. An invoice was prepared, 
 a receipt given for the purchase- 
 money, and possession delivered to the 
 defendant. The latter sold the goods 
 as his own. Plaintiff brought trover 
 and was permitted to recover upon 
 the theory that the transaction never 
 was in reality a sale. Pollock, C. B., 
 said : " I am by no means sure that a 
 man who, under the pressure of dis- 
 tress and misfortune, lends himself to 
 such a transaction, is in the same 
 delictum as a man who does so with- 
 out such motive." Still more re- 
 markable is the statement of Martin, 
 B., who observed : "It is said that a 
 person ought not to be allowed to set 
 up his own fraud. But here there 
 was no fraud : it was only in- 
 tended to give the defendant the 
 I lower to pretend that he was the 
 owner of the goods." If observations 
 such as these are to pass unchallenged 
 the principle of law for which we 
 are contending would be practically 
 nullified. 
 
 1 Guest v. Barton, 32 N. J. Eq. 120. 
 
 • Williams v. Higgins, 09 Ala. 523. 
 
 3 Montefiori v. Montefiori, 1 W. Bla. 
 364. 
 
 4 "As between the grantor and 
 grantees the conveyances made were 
 good and passed title to the property. 
 And as to the creditors of the grantor 
 they were not void, but merely voida- 
 ble at their option ; they, by proper 
 proceedings, could have them set 
 aside, but if no steps were taken by 
 them for such purpose, then undoubt- 
 edly the title of the grantees would 
 be and remain indisputable." Mc- 
 Master v. Campbell, 41 Mich. 516, 2 
 N. W. Rep. 836. Whenever it ap- 
 pears that the object of a suitor in 
 filing a creditor's bill is to aid a person 
 who has placed his property in the 
 name of another to hinder creditors 
 to regain control of it, equity will 
 refuse assistance. Ruckman v. Con- 
 over, 37 N. J. Eq. 583 ; Hamilton Nat. 
 Bank v. Halsted, 56 Hun (N. Y.) 533, 
 9 N. Y. Supp. 852 ; affi'd 134 N. Y. 
 520, 31 N. E. Rep. 900 : Winans v. 
 Graves, 43 N. J. Eq. 263, 275, 11 Atl. 
 Rep. 25. 
 
 5 McClintock v. Loisseau, 31 W. Va. 
 865, 8 S. E. Rep. 612.
 
 § 396 THE THEORY. 719 
 
 judgment against him. 1 As to every one but creditors the 
 deed fraudulently made is good, 2 and it will be set aside 
 only in so far as is necessary to satisfy the claim of the 
 attacking creditor ; any surplus remaining will be returned 
 to the grantee. 3 In some States, however, the deed if 
 made for an inadequate consideration, the grantee 
 remaining in possession, is void not only as to creditors, 
 but also as to subsequent purchasers for value, whether 
 they had notice of the deed or not. 4 
 
 § 396. The theory — No reconveyance. — Lord Chancellor 
 Thurlow 5 declared his opinion to be that in all cases 
 where money was paid for an unlawful purpose the party, 
 though particeps criminis, might recover at law ; and the 
 reason was that if courts of justice meant to prevent the 
 perpetration of crimes it must be, not by allowing a man 
 who has possession to hold it, but by putting the parties 
 back in the condition in which they were before entering 
 into the transaction. The doctrine of the learned Lord 
 Chancellor would seem to be sufficiently broad to cover 
 the cases of conveyances made in fraud of creditors. Yet 
 the authorities, as a general rule, reveal a singular 
 absence of any disposition on the part of the courts to 
 extend relief to fraudulent grantors. 6 A fraudulent 
 vendee is under no legal obligation to reconvey, though 
 morally bound to do so ; and a court of equity will give 
 no aid where both the vendor and vendee participate in 
 the illegal transaction. 7 It is familiar learning that 
 
 1 Eisner v. Heileman, 52 N. J. Law 6 Farrar v. Bernheim, 41 U. S. 
 
 378. 20 Atl. Rep. 46. App. 172, 21 C. C. A. 264. 
 
 2 Kitts v. Wilson, 140 Ind. 604, ,39 'Powell v. Ivey, 88 N. C. 256, 28 
 
 N. E. Rep. 813. Alb. L. J. 254 ; Farrar v. Bernheim, 
 
 •Comyns v. Riker, 83 Hun 471, 31 41 U. S. App. 172, 21 C. C. A. 264. 
 
 N. Y. Supp. 1042. In Carll v. Emery, 148 Mass. 32, 
 
 4 Jones v. Light, 86 Me. 437, 30 Atl. 34, 18 N. E. Rep. 574, the court 
 
 Rep. 71. says : " It would seem equally clear, 
 
 6 See Neville v. Wilkinson, 1 Bio. that, when a party who has trans- 
 
 C. C. 547. ferred property to delay or defraud
 
 720 
 
 THE THEORY. 
 
 §396 
 
 equity will not decree a specific performance of an agree- 
 ment by the fraudulent grantee to reconvey the property 
 to the debtor, 1 and will not interfere to correct a mis- 
 take in a deed that was executed for a fraudulent pur- 
 posed " This rule is a penalty imposed by the law for 
 the prevention of frauds.' 13 And if a party obtains a 
 deed without consideration upon a parol agreement that 
 he will hold the land in trust for the grantor, there is 
 authority to the effect that such trust will not be enforced, 
 as it would violate the statute of frauds, and also the 
 general rule that parol evidence cannot be admitted to 
 vary, add to, or contradict a written instrument. 4 In a 
 New Jersey case 5 it was decided that a note which was 
 given for property transferred to the maker for the pur- 
 pose of defrauding the creditors of the payee could not 
 
 creditors abandons his fraudulent 
 purpose, apprising the other party 
 thereof, and seeks to reinstate him- 
 self in the possession of his prop- 
 erty in order to pay his creditors, lie 
 may do so. It cannot be that the 
 other party, who has been a par- 
 ticipant in the fraudulent transaction, 
 by reason of such participation should 
 be able to hold the property the 
 possession of which he had so 
 acquired, and thus prevent it from 
 being devoted to its legitimate uses." 
 'Walton v. Tusten, 49 Miss. 577; 
 Sw.-et v. Tinslar, 52 Barb. (N. Y.) 271 ; 
 Canton v. Dorchester, 8 Cush. (Mass.) 
 525 ; Grider v. Graham, 4 Bibb (Ky.) 
 70; Baldwin v. Cawthorne, 19 Ves. 
 L66; Ellington v. Currie, 5 Ired. (N. 
 C.) E.|. 21 ; St. John v. Benedict, (i 
 Johns. Ch. (N. Y.) 111; Waterman 
 on Specific Performance (ed. 1881), 
 §340; Chapin v. Pease, 10 Conn 72; 
 Tyler v. Tyler. 85 III. App. 343. Even 
 if the conveyance contained an ex- 
 press agreement to reconvey on 
 demand, it is competent for the pails 
 
 especially bound by the contract to 
 go behind the language of the writing 
 and show that its real purpose was to 
 defraud creditors. Tyler v. Tyler, 
 126 111. 525, 21 N. E. Rep. 616. If, 
 however, a distinct and independent 
 contract is entered into, subsequent 
 to the conveyance, for a fair and 
 valuable consideration, it will not be 
 tainted by the fraud of the main 
 transaction. Dent v. Ferguson, 132 
 U. S. 50, 10 S. C. Rep. 13. So an 
 agreement to account for the profits 
 made while the property was in the 
 grantee's hands, was enforced in 
 Stillings v. Turner, 153 Mass. 534, 27 
 N. E. Rep. 671. See § 429. 
 
 -'Gebhard v. Battler, 40 Iowa 152. 
 Robertson v. Sayre, 134 N. Y. 99. 
 
 1 Pusey v. Gardner, 21 W. Va. 474, 
 31 N. E. Rep. 250 ; Troll v. Carter, 15 
 W. Va. 567 ; Zane v. Fink, 18 W. 
 Va. 755. See Cutler v. Turtle, 19 N. 
 J. Eq. 549. 
 
 Church v. Muir, 33 N. J. Law 
 319.
 
 § 39 6 THE THEORY. 721 
 
 be enforced in the hands of the payee against the maker. 
 In the course of the opinion Chief-Justice Beasley 
 indulged in the following refreshing observations: "It 
 was urged that the statute for the prevention of frauds 
 and perjuries does not invalidate transactions the end of 
 which is to prevent or make difficult the collection of just 
 claims, except so far as concerns creditors, and that, 
 inter partes, such transactions, if containing no other 
 infirmity, will be effectuated at law. It is certainly true, 
 the statute referred to does not, propria vigore, annul 
 beyond the extent thus defined, the conveyances and 
 contracts at which it is levelled. Nothing- more than 
 this was necessary to effect its purpose, which was the 
 relief and protection of creditors against this class of 
 frauds. But it is also clear, that it has no tendency to 
 legalize any act which was not legal at the time of its 
 
 enactment A contract, the purpose of which is to 
 
 protect a debtor against the just claims of creditors, is an 
 immoral act. Such an affair is inimical to social policy. 
 It is in direct opposition both to the letter and spirit of 
 
 the statute for the prevention of frauds In their 
 
 essence and in their effects such contracts are as immoral 
 and pernicious as many of those which the law has 
 declared to be utterly void. In these respects how are 
 they to be distinguished from contracts to indemnify 
 persons against the consequences of their illegal acts ; 
 against liability for the publication of a libel ; from 
 promises by uninterested parties to furnish money for 
 the prosecution of law-suits ; from agreements in contra- 
 vention of the bankrupt or insolvent acts, or in general 
 restraint of trade ; or from that host of other conventions, 
 which have been so often judicially condemned, not on 
 account of any enormous immorality, but on the score of 
 their inconsistency with public interest and good govern- 
 ment ? I can see no reason why contracts to defraud 
 46
 
 722 MASSACHUSETTS CASES. § 397 
 
 creditors should stand on a different footing from the 
 rest of those embraced in the class to which they evi- 
 dently belong. They are hostile to fair dealing and 
 commercial honesty, and, on this account, should be sub- 
 jected to the ban of outlawry." 1 As long as an agree- 
 ment of this kind remains executory the court will allow 
 a party to it to set up his own fraud, in an action brought 
 to enforce it. 2 It has been held that in an action to 
 foreclose a mortgage the fact that it was given in fraud 
 of creditors may be interposed as a defense. 3 
 
 § 397. Massachusetts cases. — In Massachusetts a long 
 series of cases has established the rule that a transfer 
 either of real or personal property, made with a view to 
 defraud the creditors of the grantor, although the grantee 
 has participated in this intention, is good between the 
 parties, and void only in favor of creditors ; or to speak 
 accurately, is voidable by creditors at their election. If 
 no creditors intervene, the conveyance stands ; if creditors 
 elect to affirm the transfer and receive the consideration, 
 it is thereby ratified and confirmed. Payment of the 
 grantor's debts to the full value of the property purges 
 the fraud.* This doctrine extends to executory con- 
 tracts. 5 In Freeland v. Freelaod, 6 the court says : 
 " A conveyance made in fraud of creditors is valid as 
 between the parties, and can be avoided only by cred- 
 itors, or by the assignee in insolvency, representing them ; 
 
 1 Compare Nellis v. Clark, 20 Wend. 3 Williams v. Clink, 90 Mich. 297, 
 
 (N. Y.) 37, and dissenting opinion of 51 N. W. Rep. 453. 
 
 Chief -Justice Nelson ; Briggs v. Mer- 4 Drinkwater v. Drink water, 4 
 
 rill, 58 Barb. (N. Y.) 389 ; Ager v. Mass. 354 ; Oriental Bank v. Raskins, 
 
 Duncan, 50 Cal. 325 ; Goudy v. Geb- 3 Met. (Mass.) 332 ; Crowninshield v. 
 
 hart, 1 Ohio St. 262 ; Hamilton v. Kitridge, 7 Met. (Mass.) 520. 
 
 Scull, 25 Mo. 165; Andruss v. Doo- 5 Knapp v. Lee, 3 Pick. (Mass.) 
 
 little, 11 Conn. 283 ; Merrick v. But- 452 ; Dyer v. Homer, 22 Pick. (Mass.) 
 
 ler, 2 Lans. (N. Y.) 103; Dent v. Fer- 253. See The Lion, 1 Sprague 40; 
 
 guson, 132 U. S. 64, 10 S. C. Rep. 13. Harvey v. Varney, 98 Mass. 120. 
 
 5 Galpin v. Galpin, 74 Iowa 454, 38 6 102 Mass. 477. 
 N. W. Rep. 156.
 
 § 39^ GENERAL RULE AND POLICY. 723 
 
 and, if he affirms it, it stands good." ! But where the 
 action is brought by the grantor, not in his own behalf, 
 but for the purpose of having the grantee account for the 
 proceeds of the property conveyed for the benefit of the 
 grantee's creditors, the action can be maintained." In 
 Traders' National Bank v. Steere, 3 the court says : "The 
 conveyance of property by a contract which is void as 
 being against public policy in a particular which has no 
 reference to creditors does not necessarily give creditors 
 a right to pursue the property after the contract has been 
 fully executed. Such a contract may or may not be 
 fraudulent as against creditors. If it is, they may set it 
 aside ; if it is not, they cannot." In hi re Mapleback, 4 cited 
 in the last case, it appeared that the debtor owed one of 
 his creditors one hundred pounds, and forged his name 
 upon a bill of exchange for one hundred pounds more, 
 which was discounted at a bank. Just before the bill of 
 exchange became due, the debtor wrote to the creditor 
 confessing his crime, and entreating him to furnish the 
 money to enable the debtor to take up the bill and con- 
 ceal the crime, and offering security. The creditor fur- 
 nished the money and took the conveyance as security 
 for the amount and also for his former debt. The Lord 
 Justices, without expressly deciding that the transaction 
 was illegal, held, that, if it was, the assignee could not 
 take advantage of it, because it was not a fraud upon 
 creditors nor a fraud against the bankrupt act. 
 
 §398. General rule and policy. — These covinous con- 
 veyances are binding upon heirs, 5 legatees, 6 and, as is 
 
 1 Citing Butler v. Hildreth, 5 Met. 4 4 Ch. D. 150. 
 
 (Mass.) 49 ; Snow v. Lang, 2 Allen B Moseley v. Moseley, 15 N. Y. 334 ; 
 
 (Mass.) 18; Harvey v. Varney, 98 Dent v. Ferguson, 132 U. S. 50, 10 S. 
 
 Mass. 118; Morgan v. Abbott, 148 C. Rep. 13; Robertson v. Sayre, 134 
 
 Mass. 507, 20 N. E. Rep. 165. See g 107. N. Y. 99, 31 N. E. Rep. 250. See g 121. 
 
 2 Carll v. Emery, 148 Mass. 32. 18 6 Guidry v. Grivot, 2 Martin, N. S. 
 N. E. Rep. 574. (La.) 13. 14 Am. Dec. 193. See § 
 
 3 165 Mass. 393, 43 N. E. Rep. 187. 121, n.
 
 724 GENERAL RULE AND POLICY. § 398 
 
 elsewhere shown, 1 in certain cases upon personal repre- 
 sentatives 8 and assignees. 3 The fraudulent conveyance 
 is treated as so far valid that creditors of the vendee may 
 seize upon the property and may even cancel a recon- 
 veyance of it to the grantor. 4 A court of equity will 
 not intervene to give relief to either party from the 
 consequences of a fraudulent conveyance. The maxim 
 "in pari delicto potior est conditio defendentis" must 
 prevail. 5 
 
 Though a reconveyance cannot be enforced, 6 the 
 fraudulent vendee is said, in some of the cases, to be 
 under a high moral and equitable obligation to restore 
 the property. 7 The law is not so unjust as to deny to 
 men the right, while it is in their power to do so, to 
 recognize and fulfill their obligations of honor and good 
 faith. And until the creditors of the vendee acquire 
 actual liens upon the property, they have no legal or 
 equitable claims in respect to it, higher than or superior 
 
 1 See §§ 112, 113. v. American Preservers' Co., 157 111. 
 
 2 Blake v. Blake, 53 Miss. 193 : 316, 41 N. E. Rep. 765. 
 
 Merry v. Fremon, 44 Mo. 522 ; Davis 6 Where a person fraudulently and 
 
 v. Swanson, 54 Ala. 277 : Loomis v. collusively accepts a conveyance of 
 
 Tifft, 16 Barb. (N. Y.) 545. land from another, to aid the grantor 
 
 3 See § 115 ; also Chap. XXI. in defrauding creditors, the wife and 
 
 4 Chapin v. Pease. 10 Conn. 69. children of the grantee after his death 
 See £ 387. In Allison v. Hagan, 12 are mere volunteers, and take no 
 Nev. 46, the court said: "Nor will greater rights than the grantee had 
 the courts, as between the parties to in his lifetime. Farrar v. Bernheim, 
 a fraudulent conveyance, or between 41 U. S. App. 172, 21 C. C. A. 264. 
 
 a fraudulent grantee and his cred- " In Fargo v. Ladd, 6 Wis. 106, it 
 
 itors, permit either the fraudulent was held that where the grantee of 
 
 grantor or grantee to be heard in property fraudulently conveyed had 
 
 avoidance of the fraudulent act." voluntarily reconveyed to the grantor, 
 
 5 Randall v. Howard. 2 Black, 588 ; in apparent execution of his trust, he 
 Dent v. Ferguson, 132 U. S. 64, 10 S. could not thereafter make a valid 
 C. Rep. 13 ; Wheeler v. Sage, 1 Wall. claim to the property, or its proceeds, 
 518; Bartle v. Nutt, 4 Pet. 184, on the ground of the original fraudu- 
 189 ; Schermerhorn v. De Chambrun, lent conveyance. See Second Na- 
 64 Fed. Rep. 206; Kirkpatrich v. Clark, tional Bank v. Brady, 96 Ind. 505. 
 132 111. 342, 24 N. E. Rep. 71 ; Bishop
 
 § 399 WHEN AID WILL BE EXTENDED. 725 
 
 to, those of the grantor. 1 It has been contended that 
 the transfer only made visible an ownership which already 
 existed, though secretly. 2 While the fact that title to 
 real estate was put in one to hold for another with intent 
 to defraud creditors, might be a defense by the trustee in 
 an action to establish the trust, yet where the trust has 
 been completed by a conveyance to the equitable owner 
 the principle has no application. 3 
 
 The boundaries of these rules as to the conclusiveness 
 of voluntary or covinous conveyances between the parties 
 have, however, been broken over in some instances. And 
 the rule itself has been questioned upon the theory that 
 both parties are seldom equally to blame in a transaction 
 tinctured with fraud in each, and if they are, the doctrine 
 seems to encourage a double fraud on the one side to pun- 
 ish the single fraud on the other. 4 
 
 § 399. When aid will be extended to grantors. — This rule, 
 it has been said, did not in the nature of things apply 
 where the grantor was not in pari delicto* with the 
 grantee, as where a creditor availed himself of his power 
 over a debtor and induced him by misrepresentation to 
 
 1 Davis v. Graves, 29 Barh. (N. Y.) was with similar caution provided 
 
 485 ; Stanton v. Shaw, 3 Baxt. (Term.) that the voluntary conveyances in 
 
 12 ; Dunn v. Whalen, 21 N. Y. Supp. the contemplation of that act should 
 
 869. Mr. Roberts says (Roberts' Fraud- be void only as against those who 
 
 ulent Conveyances, p. 641), that should thereafter purchase upon yail, 
 
 " voluntary conveyances were always i. e. valuable, consideration, 
 
 binding upon the party, and all claim- 2 See Keel v. Larkin, 83 Ala. 146, 3 
 
 ing voluntarily under him ; and the' So. Rep. 296, and cases cited ; Lillis v. 
 
 statutes of Elizabeth against fraud- Gallagher, 39 N. J. Eq. 94. 
 
 ulent conveyances have expressly 3 Campbell v. First Nat. Bk. 22 Col. 
 
 guarded against a construction in 177, 43 Pac. Rep. 1007 ; Ownes v. 
 
 derogation of this rule." Thus in the Ownes, 23 N. J. Eq. 60. 
 
 statute 13 Elizabeth, c. 5, it was pro- 4 Gowan v. Gowan, 30 Mo. 476. 
 
 vided that the fraudulent gifts and Compare Nichols v. McCarthy. 5:! 
 
 grants therein denounced should be Conn. 299. 
 
 void only against those persons whose B Melbye v. Melbye, 15 Wash. 650, 
 
 actions, debts, and accounts are hin- 47 Pac. Rep. 16; Place v. Hay ward, 
 
 dered and delayed ; and in 27 Eliz. it 117 N. Y. 487, 23 N. E. Rep. 25.
 
 726 WHEN AID WILL BE EXTENDED. § 399 
 
 make a fraudulent conveyance to him. 1 Thus in Roman v. 
 Mali. 2 the doctrine is asserted that there may be differ- 
 ent degrees of guilt as between the parties to a fraudu- 
 lent or illegal transaction, and if one party act under 
 circumstances of oppression, imposition, undue influence, 
 or at a great disadvantage, with the other party con- 
 cerned, so that it appears his guilt is subordinate to that 
 of the defendant, the court in such case will extend relief. 
 Parker, J., said in James v. Bird : a " There is no case in 
 equity where any relief has been given to a fraudulent 
 grantor of property, the conveyance being made to pro- 
 tect it against his creditors, except that of Austin v. 
 Winston, 4 decided by a divided court, and perhaps, under 
 the circumstances, properly decided." The authority of 
 the case, however, has been in some measure acknowl- 
 edged in several States. 5 The court in Fletcher v. 
 Fletcher, 6 concedes that it would assist the grantor in 
 cases where circumstances were shown which warranted 
 its interposition on recognized and settled grounds of 
 equity jurisprudence, " such as fraud in procuring the 
 deed, imposition by the grantee in violation of some fidu- 
 ciary relation, delusion, or the like, on the part of the 
 grantor, at the time of executing the deed." In Pinck- 
 ston v. Brown, 7 it appeared that at the time the deed was 
 
 1 Austin v. Winston, 1 Hen. & M. 4 1 Hen. & M. (Va.) 33. 
 
 (Va.) 33 ; Holliway v. Holliway, 77 6 See Bellamy v. Bellamy, 6 Fla. 
 
 Mo. 396. In Mississippi it is held that 104; Freeman v. Sedwick, 6 Gill 
 
 a defendant cannot resist payment of (Md.) 41 ; Cushwa v. Cushwa, 5 Md. 
 
 the purchase-price of goods sold and 53; Quirk v. Thomas, 6 Mich. 111. 
 
 delivered to him, on the ground that But compare Clay v. Williams, 2 
 
 the sale was in fraud of the creditors Munf. (Va.) 121 ; Starke v. Littlepage, 
 
 of the seller. Gary v. Jacobson, 55 4 Rand. (Va.)371: Jones v. Comer, 5 
 
 Miss. 'Juj. gut see, contra, Church v. Leigh (Va.) 357; Griffin v. Macaulay, 
 
 Muir, :;:; N. J. Law 318: Nellie 7 Gratt. (Va.) 564. 
 
 v. ( lark, 4 Hill (N. Y. ) 424 : Walton v. 6 2 MacAr. (D. C.) 39, 40. 
 
 Bonham, 24 Ala. 513. SeeMoseleyv. ' 3 Jours' Eq. (N. C.) 490. See 
 
 Mosely, 15 N. Y.334 Nichols v. McCarthy, 53 Conn. 299, 
 
 U Md. 513. 23 Atl. Rep. 93. 
 
 z 8 Leigh (Va.) 510.
 
 § 399 WHEN AIL) WILL BE EXTENDED. ;_V 
 
 executed the plaintiff was old, infirm, weak of mind, and 
 much diseased and distressed in body. The deed was 
 made with a view to hinder and delay the collection of a 
 debt. The party benefited was the plaintiff's oldest son, 
 in whose ability and integrity she had the greatest confi- 
 dence. The transfer had undoubtedly been consummated 
 by means of the undue influence and deceit practiced 
 upon and exercised over the aged and confiding mother 
 by the son. The court held that the mother and son 
 were in delicto, but not in pari delicto, and at the suit of 
 the mother set the transaction aside. 1 In a case which 
 came before the Supreme Court of New York, 2 A. sued 
 B. for slander. B., to protect himself, conveyed property 
 to C, who agreed to reconvey. B. defeated the slander 
 suit. It was held that C. must reconvey. Johnson, J., 
 said : " Gilman had at the time no other creditors, and 
 his sole design was to get his property out of the way of 
 any judgments which might possibly be recovered in 
 those actions, and not to hinder, delay, or defraud any 
 other person whatever. It turned out that the several 
 plaintiffs in those actions had no 'lawful' claim against 
 Gilman. They were not creditors, and, as to them, the 
 conveyance was valid, as it was, also, between the grantor 
 and grantee. It was not designed to defraud the plaintiff 
 of his claim, as the referee expressly finds. As this con- 
 veyance was not made with intent to hinder, delay, or 
 defraud any existing creditor, or any person having a law- 
 ful claim, but only a person making an unlawful and 
 unfounded claim, which the defendant Gilman disputed 
 and denied, and ultimately defeated, it may present a 
 grave question, whether it falls at all within the condem- 
 
 1 See Osborne v. Williams, 18 Ves. 209, 38 N. Y. Supp. 546 ; Block v. 
 
 382 , Story's Equity Jur. § 300. Darling, 140 U. S. 239, 11 S. C. Rep. 
 
 s Baker v. Gilman, 52 Barb. (N. Y.) 832. 
 36. See Kain v. Larkin, 4 App. Div.
 
 728 CASES AND ILLUSTRATIONS. § 4OO 
 
 nation of the statute The sole object of the statute 
 
 here, in declaring conveyances void, is to protect, and 
 prevent the defeat of law fid debts, claims, or demands, 
 and not those which are unlawful, or trumped up, and 
 which have no foundation in law or justice, and the verity 
 of which is never established by any judgment, or by the 
 assent of the person against whom they are made. As 
 against claims and demands of the latter class, the statute 
 does not forbid conveyances or assignments, nor declare 
 them void." It may well be seriously questioned, how- 
 ever, whether this contention can be uniformly upheld. 
 The courts would be justified in refusing to inquire 
 whether the grantor's apprehensions as to the recovery 
 of a judgment against him were well or ill founded, and 
 might well incline to leave the parties in the position in 
 which it found them. 1 In a Massachusetts case property 
 fraudulently conveyed had been retransferred to the 
 grantor the grantee agreeing to account for the profits. 
 It was decided that this agreement was valid and binding 
 upon him. 2 
 
 § 400. Cases and illustrations. — In Boyd v. De La Mon- 
 tagnie 3 it appeared that a husband had secured a gratu- 
 itous transfer of property from his wife by means of false 
 representations on his part, that she was liable for a debt, 
 when in fact no such liability existed. Though the trans- 
 action was consummated in the belief that the effect of the 
 transfer would be to hinder and delay the creditors, or in 
 some way to save the property, it was held to be no 
 answer that the wife consented to the act with a view to 
 defraud creditors. Chief-Justice Church said: "The 
 parties do not stand on equal terms, and the husband 
 
 1 Compare Tan turn v. Miller, UN. 2 Stillings v. Turner, 153 Mass. 534, 
 
 J. Eq. 551 ; Harris v. Harris, 23 Gratt. 27 N. E. Rep. 671. 
 
 (Va.) 7:57, 764. and see contra, Flet- :; 7^ N. Y. 498; Haack v. Weicken, 
 
 cher v. Fletcher, 2 MacAr. (D. C.) 38. 118 N. Y. 74, 23 N. E. Rep. 133.
 
 § 400 CASES AND ILLUSTRATIONS. 729 
 
 cannot avail himself of the plea of particeps en' minis on 
 the part of the wife." A court of equity will interpose its 
 jurisdiction to set aside instruments between persons 
 occupying relations in which one party may naturally 
 exercise an influence over the conduct of another. A 
 husband is held to occupy such a relation to his wife, and 
 those equitable principles apply to them in respect to 
 gratuitious transfers by the wife to the husband. 1 So in 
 Freelove v. Cole 2 it was decided that as there are degrees 
 of crime and of wrong, the courts can and will give relief 
 in many cases as against the more guilty. " To exclude 
 relief in such cases," said Smith, J., " the parties must not 
 only be in delicto but in pari delicto!' Applying this doc- 
 trine it was held that where the plaintiff was infirm of 
 mind and incompetent to manage and conduct his busi- 
 ness affairs with ordinary prudence and discretion, and the 
 defendant was his son-in-law, confidential friend, and legal 
 adviser, and had procured a conveyance to himself of 
 the property in order to place it beyond the reach of the 
 plaintiff's creditors, relief might still be accorded the 
 plaintiff. 3 Ford v. Harrington, 4 an important and lead- 
 ing case in the New York Court of Appeals, in which 
 judges of the eminence of Denio, Johnson, Comstock, 
 
 'See Barnes v. Brown, 32 Mich, and the grantee. The rule is not uni- 
 
 146. versal, and, as stated, is not supported 
 
 2 41 Bart). (N. Y.) 326; affirmed, 41 by the authorities.'' Cited and quoted 
 N. Y. 619, without an opinion. are Osborne v. Williams, 18 Ves. 382 ; 
 
 3 In O'Conner v. Ward, 60 Miss. Pinckston v. Brown, 3 Jones' Eq. (N. 
 1025-1035 (decided in April, 1883), the C.) 494 ; Smith v. Bromley, 2 Don.-. 
 Supreme Court of Mississippi said: 696; Browning v. Morris, Cowp. 790 ; 
 "We do not agree with the proposi- Boyd v. De La Montagnie, 73 N. Y. 
 tion announced by Mr. Bump in his 498 ; W. v. B. 32 Beav. 574 ; Ford v. 
 work on Fraudulent Conveyances, Harrington, 16 N. Y. 285. 
 
 that where a person has sufficient 4 16 N. Y. 285. See Freelove v. 
 
 capacity to contract, and makes a con- Cole, 41 Barb. (N. Y.) 318 ; Gibson v. 
 
 veyance with intent to hinder, delay, Jeyes, 6 Ves. 266 ; Smith v. Kay. 7 II. 
 
 or defraud his creditors, a court of L. Cas. 771; Place v. Hayward, 117 
 
 equity will not inquire into the N. Y. 496, 23 N. E. Rep. 25. 
 degrees of guilt between the grantor
 
 730 CASES AND ILLUSTRATIONS. § 4OO 
 
 Selden, and Brown participated, seems clearly to establish 
 the same general principle. It was there expressly held 
 that where an attorney procured from a client a convey- 
 ance of a valuable interest in land for a manifestly inade- 
 quate consideration, the conveyance being advised by the 
 attorney with a view to defeat a creditor of the grantor, 
 though the agreement was illegal, yet the rule prohibiting 
 the attorney from obtaining any unconscionable advantage 
 in dealing with his client must prevail, and the attorney 
 could be compelled to convey the land. 1 And where the 
 parties to a conveyance are brothers, the grantor being 
 crippled and diseased in body, weak in mind, and easily 
 influenced, and under the control of the grantee, who was 
 a person vigorous in both body and mind, the conveyance 
 was set aside at the suit of the grantor, it appearing that 
 no consideration was paid, that a reconveyance was prom- 
 ised, and that the transfer was induced by operating upon 
 the grantor's fears that he was in danger of losing the 
 property by reason of a breach of promise suit which had 
 no foundation in fact. 2 
 
 1 See Boyd v. De La Montagnie, 4 to leaving the son gave the father 
 T. <fe C. (N. Y.) 153; Place v. Hay- scant security for the liability. W., a 
 ward, 117 N. Y. 496, 23 N. E. Rep. 25 ; justice of the peace, was employed to 
 Moore v. Jordan, 65 Miss. 232, 3 So. draw the papers. Thereafter W., by 
 Rep. 737 ; Block v. Darling, 140 U. S. threats to the effect that the convey - 
 239, 11 S. C. Rep. 832. ance was fraudulent and could be set 
 
 2 Holliway v. Holliway, 77 Mo. 396, aside, persuaded plaintiff to give de- 
 See Cadwallader v. West, 48 Mo. 483 ; fendants a mortgage to secure a debt 
 Bradsbaw v. Yates, 67 Mo. 221 ; Ford of the son which the father was under 
 v. Hennessy, 70 Mo. 581 ; Ranken v. no obligations to assume. Ruger, Ch. 
 Patton, 65 Mo. 378; Garvin v. Wil- J., said: "The extent to which the 
 Hams. 44 Mo. 465 ; Watkins v. Jones, plaintiff confided in the defendant 
 78 Hun (N. Y.) 496, 29 N. Y. Supp. Wattles is clearly shown by the fact 
 557; Place v. Hayward, 117 N. Y. that he had frequently employed him 
 496, 23 N. E. Rep. 25. In Fisher v. in business transactions, and that the 
 Bishop, 108 N. Y. 25, 29, 15 N. E. conveyances which he then threat- 
 Rep. 331, it appeared that plaintiff, ened to annul and overthrow were 
 ulio was much advanced in years, be- drawn by him, and accepted under 
 came involved as indorser for his son, his advise and co-operation. It was 
 who failed and absconded. Just prior a gross breach of good faith for a
 
 §40i 
 
 THE CASES JUST CONSIDERED EXCEPTIONAL. 
 
 731 
 
 § 401. The cases just considered exceptional —The practi- 
 tioner, however, must be careful to remember that the 
 cases just considered are exceptions to a well-defined rule. 
 While it is possible to deduce from them a general prin- 
 ciple that degrees of guilt will be recognized in such trans- 
 actions, and that grantors may, in certain cases, reclaim 
 the property fraudulently alienated where the transaction 
 was superinduced by the unfair action of a vendee who 
 occupied some relation of confidence which enabled him 
 
 person thus trusted, and who had by 
 conducting the business, vouched for 
 its validity and lawfulness, to turn 
 around for the purpose of gaining a 
 personal advantage, and assert that 
 he had been engaged in an illegal 
 transaction, which he could at his 
 own option annul and destroy. The 
 case shows that by these means the 
 defendants have obtained security for 
 a large amount, from an old man 
 who was under no legal or moral 
 obligation to give it, and without any 
 consideration to support it except the 
 nominal one of a dollar, and that 
 this was extorted at a time when he 
 was laboring under much distress and 
 anxiety of mind, on account of the 
 trouble that encompassed him. The 
 parties in this case did not meet on 
 equal terms, and the defendant took 
 an unfair advantage of the position in 
 which the j' had been placed, and of 
 the confidence reposed in them by the 
 plaintiff, to procure from him a val- 
 uable security to which they had no 
 legal right." In Block v. Darling, 140 
 U. S. 239, 11SC. Rep. 832, the court 
 says: "Nor did the court below 
 err in excluding evidence offered 
 by the defendants conducing to 
 show that the money claimed by 
 the plaintiff to have been depos- 
 ited with them to be paid to him on 
 his order was so deposited with the 
 intent to cheat and defraud his cred- 
 
 itors. The evidence, if admitted, 
 would not have relieved the defend- 
 ants from responsibility to account for 
 it. The plaintiff's suit to compel the 
 return of the money may be regarded 
 as one in disaffirmance of the arrange- 
 ment under which the defendants 
 claimed to have received it ; and, if 
 successful, would tend to defeat the 
 alleged purpose of defrauding his 
 creditors by having it kept upon secret 
 deposit with the defendants. It is 
 not a suit to recover money received 
 and paid out under an illegal or im- 
 moral contract which has been fully 
 executed. The suit is necessarily a 
 disavowal upon the part of the plain- 
 tiff of any purpose to hide this money 
 from his creditors. To allow the 
 defendants to retain it upon the 
 ground that he had originally the pur- 
 pose to conceal it from his creditors, 
 would be inconsistent with the spirit 
 and policy of the law. (Spring Co. v. 
 Knowlton, 103 U. S. 49, 58, and 
 authorities there cited.) Besides, the 
 deposit was good as between the 
 parties. The defendants do not rep- 
 resent the plaintiff's creditors, and tin' 
 latter are not suing." It is submitted 
 that a tendency is reflected in this 
 opinion which is opposed to tin- 
 general current of decisions and that 
 recoveries upon the theory indicated 
 by the court in the case cited should 
 not be encouraged.
 
 732 THE CASES JUST CONSIDERED EXCEPTIONAL. §401 
 
 to unduly influence the vendor, yet a very clear case with 
 well-defined reasons for excepting it from the general 
 rule must be presented. Debtors contemplating fraudu- 
 lent alienations should draw little encouragement from 
 these exceptional cases, for, as a general rule, after 
 passing through the troubled waters of insolvency, they 
 will find themselves stripped of the power to reach or 
 recover the secreted property in the hands of their 
 fraudulent grantees. The ancient rule, in pari delicto 
 melior est conditio possidentis} is not to be easily uprooted, 
 and must not be considered as overthrown or abrogated 
 by these cases. 2 The great effort has been, in at least a 
 portion if not all of the cases just considered, to show 
 that the parties were not in pari delicto because of the 
 reliance and confidence placed in the grantee, especially 
 when he assumed to advise or act in a professional 
 capacity, or occupied a position where he could exercise 
 undue influence over the vendor. In Renfrew v. 
 McDonald, 3 the fraudulent grantor, seeking to set aside 
 a conveyance made to hinder creditors, was summarily 
 dismissed on the opening oral statement of his counsel. 
 The plaintiff alleged great intimacy with and confidence 
 in the defendant, and charged that it was through his 
 influence and procurement that the fraudulent convey- 
 ance had been made, and that defendant had knowingly 
 advised plaintiff that he had no defense to certain notes, 
 the collection of which plaintiff sought to hinder and 
 delay by the conveyance in question, when in fact a 
 defense did exist. The court said : " Nothing is alleged 
 by way of excuse for the attempted fraud, except what 
 might be with more or less truth alleged in every case. 
 The recipient of property with intent to defraud creditors, 
 
 1 Kirkpatrick v. Clark, 132 111. 347. a Cited in Pride v. Andrew, 51 
 
 24 N. E. Rep. 71 : Smith v. Hubbs, 10 Ohio St. 405, 38 N. E. Rep. 84. 
 Me. 71. 3 11 Hun (N. Y.) 255.
 
 § 40- ENFORCING FRAUDULENT DEED. 
 
 / 33 
 
 possesses the intimacy and confidence of the fraudulent 
 debtor, and advises the attempted fraud and consents to 
 be made the instrument thereof. To allow the grantor 
 in such a case to set aside the grant and be restored to 
 all he has parted with for the illegal purpose, would be to 
 afford great encouragement to future attempts of that 
 character." In Fredericks v. Davis, 1 the doctrine is 
 asserted that the grantor in an alleged fraudulent con- 
 veyance, made with full knowledge of the facts, is estopped 
 by his own warranty of title from testifying that the con- 
 veyance is fraudulent. 2 This doctrine is supported by the 
 case of Phillips v. Wooster, 3 wherein the court says : 
 "The position which the plaintiff occupies in relation to 
 the transaction complained of as fraudulent, excludes him 
 from alleging the fraud, or claiming any benefit against 
 it. The conveyance against which he now seeks to 
 derive advantage from the property, was made by him- 
 self, with a full knowledge of all the facts as they existed 
 at the time, as we are bound to presume since he has 
 shown nothing to the contrary. 4 So that if the money 
 paid was the debtor's, as he now insists it was, and the 
 conveyance to the wife therefore fraudulent as against 
 creditors, it was not fraudulent as against him, for he 
 was not only consenting to the act, but himself per- 
 formed it." 
 
 § 402. Grantee enforcing fraudulent deed. — The rule being 
 established that the courts will not interfere to set aside a 
 fraudulent executed contract as between the parties, it has 
 
 '3 Mont. 251. ' 751, 42 JN. W. Rep. 566; Rozell v. 
 
 2 Compare Dodge v. Freedman'e Vansyckle, 11 Wash. 79, 39 Pat. Rep. 
 
 Sav. & Trust Co., 93 U. S. 383 ; Pitts 270 ; Harper v. Harper, 85 Ky. 160, 
 
 v. Wilder, 1 N. Y. 525 ; Gates v. 3 S. W. Rep. 5. 
 
 Mowry, 15 Gray (Mass.) 564 ; Harvey 3 36 N. Y. 414. 
 
 v. Varney, 98 Mass. 118; Watkins v. "Citing Grant v. Morse. 22 N. Y. 
 
 Jones, 78 Hun (N. Y.) 496, 29 N. Y. 323. 
 Supp. 557 ; Wiley v. Carter, 77 Iowa
 
 734 
 
 ENFORCING FRAUDULENT DEED. § 402 
 
 been contended that the same principle would preclude 
 the grantee both from enforcing his apparent right to the 
 possession of the land under the deed, and from collecting 
 the rents or damages. 1 A consideration of the reason 
 and policy of the rule, however, led the courts to hold 
 otherwise. It is considered a mistake to suppose that the 
 parties being in pari delicto, the court would refuse the 
 grantee all remedy. The deed as between the parties is 
 perfectly good. The grantor, by a stern but necessary 
 policy of the law, is excluded from presenting the proof 
 which would show the fraud. He is in this respect the 
 actor; his fraud silences and estops him from averring 
 against his deed. 2 The rule operates only in cases where 
 the refusal of the court to aid either party frustrates the 
 object of the transaction, and destroys one of the tempta- 
 tions to enter into contracts violating the policy of the 
 law. 3 To permit the grantor, when sued by the grantee, 
 to plead the mutual fraud of the parties, in order to 
 enable him to avoid the effect of the deed by being per- 
 mitted to remain in possession of the property without 
 the payment of rent or damages, would virtually be per- 
 mitting him to reap the reward of his own iniquity since 
 he was the real actor in the fraud, and would tend to 
 encourage others to violate the law, with the hope of 
 profiting by committing frauds upon their creditors. It 
 would nullify the rule. 4 There is a distinction between 
 an executed and an executory fraudulent contract. As 
 to the latter the court, where the parties are equally 
 participants in the fraud, in pari delicto, will leave them 
 
 1 Peterson v. Brown, 17 Nev. 176, 4 Rand. (Va.) 372. See Cushwa v. 
 
 30 Pac. Rep. 697. Cushwa, 5 Md. 52 ; Murphy v. 
 
 2 Broughton v. Broughton. 4 Rich. Hubert, 16 Pa. St. 57. 
 Law (S. C.) 497. See Bonesteel v. * Murphy v. Hubert, 16 Pa. St. 57; 
 
 Sullivan, 104 Pa St, 9. Peterson v. Brown, 17 Nev. 177-179, 
 
 3 Peterson v. Brown, 17 Nev. 177, 30 Pac. Rep. 697. 
 30 Pac. Rep. 697 ; Starke v. Littlepage,
 
 § 403 FRAUD UPON A DEBTOR. 735 
 
 in the predicament where they place themselves, refusing 
 any relief or interference. And where the contract is 
 executed, as by a deed transferring the title, the court 
 acts upon the same principle, declining either to cancel 
 the deed or restore the title. But the effect is very 
 different ; in one case a specific performance will be 
 refused ; in the other the fraudulent grantee remains 
 owner of the estate as against the grantor, and all the 
 world, except the defrauded creditors. 1 In Stillwell v. 
 Stillwell, 2 the court said: " Whether the appellant's title 
 was fraudulent or not, was of no consequence in the 
 present case. Admitting, as has been admitted, that the 
 appellant's title, as derived from her husband, was void at 
 the instance of creditors, that fact did not prevent her 
 from setting up in a court of equity, that either her hus- 
 band or some one else had, by fraud, got the title from 
 her. To hold otherwise would be to lay down the 
 doctrine that the holder of one of these surreptitious 
 titles was, with respect to it, put out of the protection of 
 the law. There is no such principle of law or equity." 
 
 § 403, Fraud upon a debtor as distinguished from fraud 
 upon creditors. — Fraud practiced by a third party upon a 
 debtor is manifestly a different thing from fraud upon 
 creditors, and it may well be doubted whether a creditor 
 can seize property the title to which has passed to a third 
 party, or attack such a conveyance where the creditor 
 proceeds upon the ground that the purchaser committed 
 a fraud upon the seller which entitled the latter to avoid 
 the sale. In Garretson v. Kane, 3 the court used these 
 words : " A creditor cannot redress all the wrongs done 
 to his debtor. He cannot claim damages for a trespass 
 or for a deceit. A fraud like that offered to be proved in 
 this case would entitle the seller to relief in a court of 
 
 1 Walton v. Tusten, 49 Miss. 576. 3 27 N. J. Law 211 . 
 
 2 47 N. J. Eq. 278, 20 Atl. Rep. 960.
 
 7 $6 DECLARING DEED A MORTGAGE. § 404 
 
 equity upon proper terms, and possibly a creditor may 
 have relief there; but he cannot step in and claim that 
 such a sale was absolutely void at law. If he can inter- 
 fere at all his rights will be the same as those of his debtor. 
 . . . . A creditor who seeks to avoid a sale as fraudulent 
 against him, does not represent his debtor, but exercises 
 rights paramount to his. There is in truth, no similarity 
 between [the] two kinds of fraud. In the one case it is, 
 either in fact or in law, the fraud of the debtor himself, 
 while in the other the debtor is the victim, and guilty of 
 no wrong. A case may occur combining both descrip- 
 tions of fraud." 1 It will be at once apparent that this 
 element of the law enters largely into the cases in which 
 the debtor or grantor has a standing to attack or avoid 
 his own transfer. 
 
 §404. Declaring deed a mortgage. — As is elsewhere 
 stated, an absolute conveyance may be shown to be a 
 mortgage. 2 The theory of the decisions is that dealings 
 between the borrower and the lender of money, or debtor 
 and creditor, conducted by requiring an absolute deed for 
 security, and a renunciation of all legal right of redemption 
 are so significant of oppression, and so calculated to invite 
 to or result in wrong and injustice on the part of the stronger 
 toward the weaker party in the transaction, as in them- 
 selves to constitute a quasi fraud against which equity 
 ought to relieve, as it does against the strict letter of an 
 express condition of forfeiture. The grounds of relief 
 being purely equitable, it may and should be refused if 
 the equitable considerations upon which it rests are want- 
 
 1 See Graham v. Railroad Co., 102 2 Campbell v. Dearborn, 109 Mass. 
 
 U. S. 148. Compare Eaton v. Perry, 130: Carr v. Carr, 52 N. Y. 251; 
 
 29 Mo. 96 ; Prosserv. Edmonds. 1 Y. Stevens v. Wiley, 165 Mass. 406, 43 N. 
 
 & C. 481 ; French v. Shotwell, 5 E. Rep. 177 ; Minchin v. Minchin, 157 
 
 Johns. Ch. (N. Y.) 555 ; Crocker v. Mass. 265, 32 N. E. Rep. 164. See 
 
 li.-llangee, 6 Wis. 645 ; Hovey v. Hoi- § 238. 
 comb, 11 111. 660 ; McAlpine v. 
 Sweetzer, 76 Ind. 78.
 
 § 404^ MORTGAGED PROPERTY. 737 
 
 ing. Therefore an absolute deed made by a debtor to 
 one creditor, with the intention to defraud other creditors, 
 will not be adjudged an equitable mortgage at the solici- 
 tation of the debtor. Fraud against creditors cannot be 
 set up, it is true, by any one not standing upon the rights 
 of a defrauded creditor to defeat any legal claim or inter- 
 est which 'the fraudulent debtor may seek to enforce. 
 But such a party is in no condition to ask a court of 
 equity to interfere actively in his behalf, to secure to him 
 the fruits of his fraudulent devices. One who comes for 
 relief into a court whose proceedings are intended to 
 reach the conscience of the parties, must first have that 
 standard applied to his own conduct in the transactions 
 out of which his grievance arises. If that condemns him 
 he cannot insist upon applying it to the other party. * 
 
 § 404a. Redeeming mortgaged property. — The courts 
 will not seek to enlarge the scope or legal effect of a 
 transaction that is tainted with a design to defraud 
 creditors. Hence where property is pledged or mort- 
 gaged by a debtor the pledgor or mortgagor will be per- 
 mitted to redeem it though the design to defraud 
 creditors may have been present in his mind when the 
 pledge was made or the loan procured. Such a trans- 
 action does not in itself purport to vest an absolute title 
 in the pledgee or mortgagee, and the courts will not 
 strive to enlarge or vary its operation merely to inflict 
 punishment upon a fraudulent debtor by cutting off the 
 right to redeem. 2 Another illustration may be cited. In 
 Gowan v. Gowan 3 it was expressly decided that where a 
 debtor deposits personal property with a bailee to protect 
 it from creditors, the bailee cannot defeat the debtor's 
 action to recover the property by setting up the fraud. 
 
 1 Hassam v. Barrett, 115 Mass. 256, 2 See Smith v. Quart/. Mining Co., 
 
 258; Brown v. Reilly, 72 Md. 489, 20 14 Cal., 242 : Taylor \. Weld, ■"> Mass. 
 
 Atl. Rep. 239; but see Halloran v. 109, 116; Jones v. Rahilly, 16 Minn. 320. 
 
 Halloran, 137 111. 100, 27 N. E. Rep. 82. 3 30 Mo. 472. 
 47
 
 CHAPTER XXVII. 
 
 JURISDICTIONAL QUESTIONS — CONCLUSION. 
 
 § 405. Jurisdiction beyond State bound- 
 aries. 
 406. Outside county of defendant's 
 residence. 
 
 § 407. Appeal to United States Su- 
 preme Court — Uniting claims. 
 407a. Certificate of division. 
 
 § 4°5- Jurisdiction beyond State boundaries. — A few gen- 
 eral observations will bring the discussion to a close. 
 
 Parties conducting litigations for creditors may be 
 reminded that the courts of one State cannot entertain 
 jurisdiction of an action to recover lands lying in another 
 State, where the proceeding is in rem? for actions for the 
 recovery of real property, or for the determination of an 
 interest therein, are local and must be brought in the 
 State and county where the premises are situated. 2 But 
 where the court has jurisdiction of the proper parties, it 
 may, by its judgment or decree, as we have seen, compel 
 them to do equity in relation to lands located without its 
 jurisdiction. The court in such case acts in personam? 
 and may compel a specific performance of a contract for 
 the sale of land beyond the borders of the State, 4 or a 
 conveyance of lands outside the State jurisdiction when 
 
 1 Gardner v. Ogden, 22 N. Y. 333. 
 
 ' Sedgwick & Wait on Trial of Title 
 to Land 2d, ed., § 465, and cases cited. 
 See American Union Tel. Co. v. Mid- 
 dleton, 80 N. Y. 408 ; Blake v. Free- 
 man. 13 Me. 130. Foreign statutes 
 have no force ex proprio vigore, but 
 the title of a foreign assignee may be 
 recognized by comity if this can be 
 done without injustice to home citi- 
 zens. Matter of Waite, 99 N. Y. 433. 
 
 s Gardner v. Ogden, 22 N. Y. 333 ; 
 Arglasse v. Muschamp, 1 Vera. 75 ; 
 Penn v. Lord Baltimore, 1 Ves. Sr. 
 444; Paschal v. Acklin, 27 Tex. 173; 
 Dale v. Roosevelt, 5 Johns. Ch. (N. Y.) 
 174; Newton v. Bronson, 13 N. Y. 
 587 ; Sutphen v. Fowler, 9 Paige's Ch. 
 (N. Y.) 280 ; Great Falls Mfg. Co. v. 
 Worster, 23 N. H. 462. 
 
 4 Newton v. Bronson, 13 N. Y. 587.
 
 § 4°6 defendant's residence. 739 
 
 the title has been fraudulently obtained by a defendant ; ] 
 and a debtor may be compelled to convey lands in 
 another State for the benefit of creditors, so as to vest 
 in the grantee the legal title. 3 So the court has power 
 to decree the cancellation of a void mortgage which is an 
 apparent lien and cloud upon property beyond the jur- 
 isdiction of the court. "This power," says Johnson, J., 
 " has been frequently exercised to compel parties to per- 
 form their contracts specifically, and execute conveyances 
 of lands in other States, and also to set aside fraudulent 
 conveyances of lands in other States." 8 "Where the 
 necessary parties are before a court of equity," said 
 Swayne, J., " it is immaterial that the res of the contro- 
 versy, whether it be real or personal property, is beyond 
 the territorial jurisdiction of the tribunal. It has the 
 power to compel the defendant to do all things necessary, 
 according to the lex loci rei sitcz, which he could do vol- 
 untarily, to give full effect to the decree against him." 4 
 Without regard to the situation of the subject-matter, 
 such courts consider the equities between the parties, 
 and enforce obedience to their decrees by process in 
 personam? 
 
 The law of the domicile of the owner governs the 
 validity of a transfer of personal property. 6 
 
 § 406. Outside county of defendant's residence. — In a case 
 which arose in Georgia, 7 it appeared that the constitution 
 and laws of that State required that suits must be brought 
 in the county in which the defendant resided, and it was 
 
 1 Gardner v. Ogden, 22 N. Y. 827. 6 Miller v. Sherry, 2 Wall. 249 ; 
 
 * Bailey v. Ryder, 10 N. Y. 363. Mitchell v. Bunch, 2 Paige (N. Y.) 
 ' Williams v. Ayrault, 31 Barb. (N. 606. 
 
 Y.) 364, 368. 6 Barth v. Backus, 140 N. Y. 230, 
 
 * Phelps v. McDonald, 99 TJ. S. 308 ; 35 N. E. Rep. 425. 
 
 Municipal Investment Co. v. Gardiner, 7 Taylor v. Cloud, 40 Ga. 288. See 
 
 62 Fed. Rep. 956 ; Hart v. Sansom, Johnson v. Griffin, 80 Ga. 553, 7 S. E. 
 
 110 U. S. 151, 3 S. C. Rep. 586. Rep. 94.
 
 740 UNITING CLAIMS. § 407 
 
 held that it was good ground of demurrer to a bill in 
 equity to set aside a fraudulent conveyance of land that 
 it was not filed in the county of the defendant's residence. 
 The defect was held not to be cured by the fact that the 
 bill was filed in the county where the land was situated, 
 or because a lessee of the defendant in possession of the 
 property was a party to the bill, when no substantial 
 relief was sought against such tenant. 1 This is exceptional 
 practice, for, at least so far as realty is concerned, the 
 action to set aside a conveyance would be local, and local 
 actions should be brought in the county where the land 
 lies. 2 
 
 In Missouri a judgment-creditor who acquires title to 
 land situated in different counties, by purchase at sheriff's 
 sale, may bring a single action to set aside conveyances 
 made by the debtor to a single person. Separate suits 
 in each county need not be brought. 3 
 
 $ 407, Appeal to United States Supreme Court— Uniting 
 claims. — When judgment-creditors join in a suit to set 
 aside a fraudulent conveyance by their debtor, and the 
 amounts found due to the creditors respectively are less 
 than the jurisdictional limit of the United States Supreme 
 Court, the several claims cannot be united to give juris- 
 diction on appeal. 4 In Seaver v. Bigelows, 5 Nelson, J., 
 said : " The judgment-creditors who have joined in this 
 
 1 See Smith v. Bryan, 34 Ga. 53. U. S. 42, 12 S. C. Rep. 364 ; Busey v. 
 See Caswell v. Bunch. 77 Ga. 505. Smith, 67 Fed. Rep. 13 ; Putney v. 
 
 2 Sedgwick & Wait on Trial of Title Whitmire, 66 Fed. Rep. 386. See 
 to Laud, 3ded., §465; Augusta Sav. Fourth National Bank v. Stout, 113 
 Bank v. Stelling, 31 S. C. 360, 9 S. E. U. S. 681, 5 S. C. Rep. 695 ; Hawley 
 Rep. 1023. v. Fairbanks. 108 U. S. 548, 2 S. C. 
 
 3 Lindell Real Estate Co. v. Lin- Rep. 846 ; Ex parte. Phoenix Ins. Co., 
 dell, 133 Mo. 394, 33 S. W. Rep. 466. 117 U. S. 369, 6 S. C. Rep. 772 ; Tup- 
 
 1 Schwed v. Smith, 106 U. S. 188; per v. Wise, 110 U. S. 398, 4 S. C. 
 
 Gibson v. Shufeldt, 122 U. S. 27, 7 S. Rep. 26 : Stewart v. Dunham, 115 U. 
 
 C. Rep. 1066 ; Davis v. Schwartz, 155 S. 61, 5 S. C. Rep. 1163. 
 U. S. 647, 15 S. C. Rep. 237; New 5 Wall. 203: Hunt v. Bender, 154 
 
 Orleans Pac. Ry. Co. v. Parker, 143 U. S. 556, 14 S. C. Rep. 1163.
 
 § 407a CERTIFICATE OF DIVISION. 74 1 
 
 bill have separate and distinct interests depending upon 
 separate and distinct judgments. In no event could tin- 
 sum in dispute of either party exceed the amount of their 
 
 judgment The bill being dismissed each fails 
 
 in obtaining payment of his demands. If it had been 
 sustained, and a decree rendered in their favor, it would 
 only have been for the amount of the judgment of each." 
 In Schwed v. Smith x the same court held that if the 
 decree was several as to creditors it was difficult to see 
 why it was not also several as to their adversaries, the 
 theory being that although the proceeding was in form 
 but one suit, its legal effect was the same as though 
 separate suits had been instituted on each of the separate 
 causes of action. 3 
 
 § 407a. Certificate of division. — Whether a sale and deliv- 
 ery of a debtor's stock of goods, by way of preference of 
 a bona fide creditor, is fraudulent against other creditors, 
 involves a question of fact, depending upon all the circum- 
 stances and cannot be referred to the United States 
 Supreme Court by certificate of division of opinion. 3 
 
 This closes the discussion. We have traced the famous 
 statute of Elizabeth from its enactment to the present 
 time, and have seen how important the place it fills has 
 become in our jurisprudence. Twyne's case is still a 
 great land-mark in this branch of the law. The volume 
 of litigation engendered by covinous alienations is scarcely 
 creditable to the integrity of our people. The ability of 
 the courts to successfully grapple with fraudulent debtors 
 and purchasers in bad faith, without the coercive aid of 
 imprisonment, in view of the growth of statutory exemp- 
 tions and spendthrift trusts, frequently becomes a matter 
 
 1 106 U. S. 188, 1 S. C. Rep. 221. 3 Jewell v. Knight, L23 U. S. 426, 
 
 2 See Ex parte Baltimore & O. R. 8 S. C. Rep. L93. Compare Graver v. 
 R. Co., 106 U. S. 5, 1 S. C. Rep. 35. Faurot, 162 U. S. 435, 16 S. C. Rep. 136.
 
 742 CONCLUSION. § 407a 
 
 of grave doubt. Hence it is that the existence of cases 
 accomplishing results like those of Cutting v. Cutting, 1 
 and Broadway Bank v. Adams, 3 is to be so deeply 
 deplored. That the law formulating the rights and regu- 
 lating the remedies of creditors against covinous convey- 
 ances and for the conversion of equitable assets is develop- 
 ing in the right direction, and becoming more effectual 
 against the debtor class is claimed in some directions. It 
 is still, however, in an unsatisfactory condition. The 
 many forms in which a debtor's assets can be secreted or 
 spirited away, and his income protected, and the endless 
 varieties of fraudulent devices, render the solution of the 
 problem a matter of extreme difficulty. Time and 
 experience alone can work out a satisfactory conclusion. 
 The development must of necessity be in the courts, and 
 there is need that the pendulum should swing to the 
 creditor's side ; we doubt the ability of the legislative 
 power to further materially progress this branch of our 
 law. 
 
 1 See § 40. 2 See § 367.
 
 INDEX. 
 
 \References are to sections^ 
 
 ABANDONED exemptions, 50. 
 
 creditors may seize, 50. 
 
 rule applies to homestead, 50. 
 ABOLITION of imprisonment, 2. 
 
 cause of fraudulent transfers, 2. 
 
 effect upon remedies, 2. 
 
 restricts creditors' rights, 2, 407a. 
 ABSCONDING and non-resident debtors, 84. 
 
 remedies against, 84. 
 
 policy of the different States, 84. 
 ABSENCE of means in vendee, 241, 274. 
 effect of proof of, 241, 274. 
 general reputation as to means, admissible, 274. 
 
 of presumptions of fraud, 5, 6, 224. 
 ACCOUNT BOOKS, as evidence, 271a. 
 ACCOUNTING, by fraudulent vendee to debtor, 176. 
 
 effect of, 176. 
 
 vendee need not account second time, 176. 
 
 for rents, 26, 176. 
 
 for improvements, 26. 
 
 judgment on, 51, 176. 
 ACCUSED person, may testify as to intent, 205 ?i. 
 ACQUIESCENCE. See Ratification. 
 
 by laches, 148, 287. 
 
 estoppel by, 91. 
 ACTION, alienation pending, 157. 
 ACTION AT LAW. See Creditors' Remedies — Complainants. 
 
 creditors may proceed by execution, 59. 
 
 treat transfer as nullity, 59. 
 
 does not interfere with remedy in equity, 60. 
 
 advantages of suit in equity over, 60. 
 ACTIONS, ex delicto, bill of particulars allowed by grace, 162a.
 
 744 References] INDEX. [are to sections. 
 
 ACTS speak louder than words, 8, 196. 
 
 done or omitted, 8, 8 n. 
 ACTUAL motive or intent, when unimportant, 9, 10, 197, 322, 382. 
 ACTUAL AND CONSTRUCTIVE FRAUD, 60, 192. 
 
 distinction between, as regards reimbursement, 192. 
 
 fraud in fact defeats reimbursement, 192. 
 
 the principle discussed, 192. 
 
 change of possession required, 253. 
 
 intent not decisive, 10, 197, 322, 382. 
 ACTUAL NOTICE, 372, 389. 
 
 See Notice. 
 ADJUDICATION, of debt, 74, 74 n. 
 ADMEASUREMENT, dower before, available to creditors, 2,2,. 
 
 reached in supplementary proceedings, 61. 
 ADMINISTRATORS, as complainants, 112, 113. 
 
 as defendants, 136, 136 n. 
 
 conveyance binding upon, 112, 113, 398. 
 
 rule in New York, 112. 
 
 may sue for cancelled debt, 42. 
 ADMITTED facts in pleading, 285. 
 
 cannot be contradicted, 285. 
 ADVANCES, future, 217. 
 
 ADVERSE POSSESSION, as defense to suit, 292. 
 AFFIRMANCE, of common law, statute of Elizabeth, 16. 
 AFFIRMATIVE, relief, rule as to, 166. 
 
 statute does not repeal common law, 16. 
 
 proof of deceit, 5. 
 AGENT, husband as, for wife, 303. 
 
 fraud of, affects principal, 198. 
 
 knowledge and notice must be clear, 198. 
 AGREEMENT to prefer, validity of, 390, 394. 
 AID, when extended to grantors, 399, 400. 
 
 See Existing Creditors, Subsequent Creditors. 
 AIDING DESCRIPTION, by evidence, 157. 
 
 attachment by injunction, 53. 
 ALABAMA, creditor without judgment may file bill, 73 ", y 5- 
 
 joinder of claims, 85, 108. 
 
 debt must be due, 73 n. 
 
 as to change of possession, 250. 
 
 spendthrift trusts, 367a. 
 
 personal representative may file bill, 113 n. 
 ALIENATION, restraints upon, 14, 361, 362. 
 See Spendthrift Trusts.
 
 References^ INDEX. [are to sections. 745 
 
 ALIENATION — continued. 
 
 property susceptible of fraudulent, 23. 
 
 aversion to restraints upon, 360, 362. 
 
 English and American cases concerning, 361 n. 
 
 claims prior and subsequent to, 105. 
 
 pending suit, 157. 
 
 doctrine of lis pendens, 157. 
 ALIMONY, conveyance to defeat, no n. 
 
 may be avoided, no ;/. 
 
 receiver for collection of, 188. 
 
 reaching trust income, 45. 
 
 no injunction to hold land subject to, 52. 
 ALIUNDE evidence of fraud, 236. 
 ALLEGING insolvency, 143. 
 
 fraud, 141. 
 
 conspiracy generally, insufficient, 141. 
 
 consideration, 144. 
 
 See Complaint. 
 ALLOWANCE, for improvements, 192 n, 193 n. 
 
 for wife, may be reached by her creditors, 22. 
 
 to fraudulent vendee, 176. 
 ALTERING MORTGAGE, effect of, 347. 
 ALTERNATIVE RELIEF, when extended, 153. 
 
 cumulative remedies, 65. 
 AMENDMENT OF COMPLAINT, 83, 156. 
 
 as to description, 156. 
 
 as to statement of value, 156. 
 
 rule as to permitting, 156. 
 
 of pleading, discretionary, 156. 
 AMERICAN, devise, assignments claimed to be, 316. 
 AMOUNT, of settlement, 306. 
 
 of consideration, 207, 223. 
 ANCESTOR'S DEED, not impeached by heir, 121. 
 ANCIENT LAWS, against insolvents, 1, 1 n. 
 ANCIENT POWER, of creditors, 1, 1 n. 
 ANCIENT PRACTICE, as to necessity of judgment, 85. 
 ANCILLARY RELIEF, by equity, 60. 
 
 collateral to maintain action, 63. 
 
 discovery as, 147. 
 ANDERSON v. BLOOD, change in the law, 376a. 
 "AND OTHERS," meaning of, 110. 
 
 who embraced in, no. 
 
 claimant of alimony, no n.
 
 J '46 References'^ INDEX. [are to sections. 
 
 ANNUITIES may be reached, 24, 45. 
 ANOTHER ACTION, pending, 2860. 
 ANSWER OR PLEA, 158-167. 
 (1.) Generally, 158. 
 
 accepted as true, when, 158, 159, 160. 
 
 fraud not presumed, 5, 6, 158. 
 
 affirmative defense, 158. 
 
 inconsistent defenses, 158. 
 
 facts attacking title, 158. 
 
 allegations of knowledge or notice, 158. 
 
 bill of particulars, 162a. 
 
 denying fraud or notice, 163. 
 
 overcoming denial in, 159. 
 
 as evidence, 159, 159 n, 160. 
 
 admission and avoidance, 164. 
 
 evidence of witness against, 160. 
 
 receiver before, 184. 
 (2.) Pleading to discovery and relief , 161. 
 
 rules as to, 161. 
 
 particularity of denial in, 162. 
 
 avoiding discovery, 165. 
 (3.) Affirmative relief, 166. 
 
 must be claimed in answer, 166. 
 
 what accomplished by, 166. 
 (4.) Verification, 167. 
 
 pleadings usually verified, 167. 
 
 waiver of verification, 167. 
 
 sworn answer taken as true, 160. 
 ANTECEDENT agreement to prefer, 342a, 394. 
 
 creditors, sharing with subsequent, 104. 
 ANTEDATING instrument, badge of fraud, 229. 
 ANTE-NUPTIAL SETTLEMENT, marriage as consideration, 
 212, 306. 
 
 fraud in, 302. 
 ANTICIPATING income by assignment, 367. 
 APPARENT FAIRNESS, will not save transaction, 241. 
 APPARENT LACHES, excusing, 148. 
 APPARENT OWNERSHIP, rights acquired, 287. 
 APPELLATE TRIBUNAL, objection to jurisdiction in, 88, 88 ;/. 
 APPOINTMENT of receiver, in judgment, 170. 
 
 in supplementary proceedings, 61, 116. 
 
 of corporation, 117. 
 
 contests over realty, 187.
 
 References]. INDEX. [are to sections. 74-7 
 
 APPOINTMENT — continued. 
 to collect alimony, 188. 
 of various interests, 188. 
 when matter of course, 184. 
 in foreclosure, 187 n. 
 
 See Receiver. 
 ARKANSAS, change of possession, 250. 
 
 trust income, 367a. 
 ARREST OF DEFENDANT, 191. 
 rule in New York, 191. 
 
 actual intent to defraud must be shown, 191. 
 constructive fraud insufficient, 191. 
 of partner, 191. 
 
 lex fori governs right to, 64, 191. 
 ARTICLES OF SEPARATION, 310. 
 
 become voluntary settlement upon reconciliation, 310. 
 ASSAULT, claims for, cannot be reached, 34. 
 claims do not pass to assignee, 316a. 
 alienations to avoid demands for, 22. 
 ASSENT, of assignee, 316^. 
 ASSERTIONS OF GOOD FAITH, inconclusive, 8. 
 
 See Bona Fide Purchasers. 
 ASSETS, available to creditors, 23-42. 
 
 membership of stock exchange constitutes, 35. 
 
 tangible property may be reached, 24. 
 
 expectant estate, 24, 29. 
 
 products of land, 24. 
 
 promissory notes, 24. 
 
 bank bills, 24. 
 
 money, 24. 
 
 improvements, rents, and profits are, 26. 
 
 crops constitute, 27. 
 
 exceeding liabilities in assignments, 340. 
 
 property substituted or mingled, 28. 
 
 estates in remainder or reversion, 29. 
 
 equitable interests, 30. 
 
 equity of redemption, 31. 
 
 reservations, 32, 272. 
 
 of corporation, trust fund, 117, 119, 139. 
 
 chosss in action, 33. 
 
 trade-marks, 36. 
 
 book royalties, 37. 
 
 patent rights, 24, 38.
 
 748 References] INDEX. \_are to sections. 
 
 ASSETS — continued. 
 
 powers, 39, 40. 
 
 promises of third parties, 43. 
 
 income of trust estate, 45, 360, 364, 366. 
 
 intentional omission of, 345. 
 
 pursuit of, when corporation changes name, 119. 
 
 squandering, by directors, 119. 
 What are not assets. 
 
 exempt property, 46-50, 365. 
 
 gifts of small value, 41. 
 
 powers, in New York, 40, 368a. 
 
 powers, in Pennsylvania, 368a. 
 
 claims for torts, 34. 
 
 income of trust estate, 360-368. 
 
 talents or industry, 50^. 
 
 payments made to a debtor, 50^. 
 ASSIGNED PROPERTY, value as affecting, 23. 
 ASSIGNEE. See Fraudulent General Assignments. 
 
 gets title to trade-marks, 36. 
 
 property transferred to, 316a. 
 
 may sue in replevin, 316a. 
 
 not an officer of the court, 316. 
 
 control of courts over, 316. 
 
 general, rights of, as complainant, 92, 115. 
 
 attacks fraudulent conveyances in New York, 115. 
 
 in bankruptcy, as complainant, 114. 
 
 title of, 35, 36, 114, 115, 364. 
 
 may sue carrier, 316a. 
 
 exempting from liability, 334. 
 
 authority of, to compromise, 336. 
 
 fraud of, 337. 
 
 innocent, rights of, 319. 
 
 ignorance or incompetency of, as badge of fraud, 338. 
 
 as defendant, 133. 
 
 assignor cannot substitute successor for assignee, 316. 
 
 rights and duties of, 319a. 
 
 not personally liable, 319^. 
 
 must exercise ordinary prudence, 319^. 
 
 in bankruptcy, as complainant, 114. 
 
 represents creditors, 114, 115. 
 
 property reverts after discharge, 114. 
 
 discharge of, 114. 
 
 reaching fund in hands of, 44.
 
 References^ INDEX. \ are to sections. 7 AQ 
 
 ASSIGNEE —continued. 
 
 no attachment of funds in hands of, 77 n. 
 
 estoppel of creditor by accepting benefits, 115. 
 
 effect of neglect to sue, 115 n. 
 ASSIGNMENT, 316-346. 
 
 See Fraudulent General Assignments. 
 
 what constitutes, 316. 
 
 construed like other contracts, 20 n, 343. 
 
 action in aid of, 109. 
 
 creditors may overturn, 108. 
 
 bill of particulars as to fraud in, 162a. 
 
 creditors, when estopped to attack, 115. 
 
 assailing and claiming under, 316 n. 
 
 debtor defendant in suit to cancel, 128. 
 
 takes effect from delivery, 316a. 
 ASSIGNOR, must not withhold assets, 3i6tf. 
 
 See Fraudulent General Assignments. 
 ASSUMPSIT, remedy by, 62. 
 
 will not lie against fraudulent vendee, 62. 
 
 damages in, 62. 
 ASSUMPTION, of liability as consideration, 209. 
 
 by surety of principal's debt, 209. 
 ATROCIOUS frauds, under forms of law, 5 //. 
 ATTACHMENT, against property in name of third party, 57. 
 
 specific lien by, 81. 
 
 New York rule, 81, 81 n. 
 
 not usually sufficient to support creditors' bill, 81. 
 
 judgment in suit by, 77. 
 
 conveyance to defeat, void, 11. 
 
 injunction in aid of, 53, 73, 185. 
 
 not good against assignee, 77 //. 
 
 rights of creditors, 394a. 
 
 simple contract creditors may have, 73 n. 
 ATTACKING CREDITORS, status of, 73-88. 
 
 See Status of Attacking Creditors. 
 ATTACKING, different conveyances, 154. 
 
 title on ground of fraud, 158. 
 
 judgments, 286^. 
 
 consideration, 297^. 
 ATTORNEY, authorized to take supplementary proceedings, 61 //. 
 
 provision for fees of, 335. 
 
 renders assignment fraudulent, 335.
 
 7 CO References} INDEX. [are to sections. 
 
 ATTORNEY — continued. 
 
 as fraudulent vendee, 62. 
 
 conspiring with debtor, 62. 
 AUTHORITY, to compromise debts, 336. 
 
 effect of, in assignment, 336. 
 AVAILABLE assets for creditors, 23-50, 50(7. 
 
 what interests may be reached, 23-45. 
 
 not exempt property, 46-50, 365. 
 
 what cannot be reached, 50a. 
 AVERMENTS of complaint, 140-157. 
 
 of delivery of deed, 140 ;/. 
 
 of answer, 158-167. 
 
 of fraud, 141. 
 AVERSION to exemptions not statutory, 360. 
 AVOIDING, denial in answer, 159. 
 
 must be overcome by competent proof, 159. 
 
 discovery, 165. 
 AWAKENING SUSPICION, is notice, 379. 
 BADGES OF FRAUD, 224-244. 
 
 (1.) Indicia or badges of fraud, 6, 224, 225. 
 
 what constitute, 224, 225. 
 
 suspicious circumstances, 225. 
 
 in Twyne's case, 22. 
 
 theory of the law, 224. 
 
 " a fact calculated to throw suspicion on the transaction, 
 225. 
 
 not conclusive evidence, 225. 
 
 strong and slight badges, 225. 
 
 burden of proof changed by, 225. 
 
 must be passed upon by jury, 226. 
 (2.) Recital of fictitious consideration, 228. 
 
 how considered, 228. 
 
 important badge of fraud, 228. 
 
 exaggerated indebtedness, 228. 
 
 misleading statement, 228. 
 
 excessive mortgage, 228. 
 
 must be intentional, not accidental, 228. 
 (3.) Antedating instrument, 229. 
 
 is an indicium of fraud, 229. 
 
 date not essential part of instrument, 229. 
 (4.) Vague description as badge of fraud, 230. 
 
 submitted to jury as a circumstance, 230. 
 
 how explained, 230.
 
 References^ INDEX. [are to sections. 75' 
 
 BADGES OF FRAUD — continued. 
 
 (5.) Generality of the conveyance, 22, 231. 
 raises presumption of fraud, 231. 
 different views of the courts, 231. 
 regarded as unusual, 231. 
 
 was one of the badges in Twyne's case, 22, 231. 
 various illustrations, 231. 
 continued possession, 231^, 245-267. 
 (6.) Inadequacy of purchase price, 232. 
 effect of, as evidence, 232. 
 does not prove fraud, 232. 
 unless extremely gross, 6, 232. 
 only a circumstance, 232. 
 (7.) Transfer pending suit, 22, 157, 233. 
 how regarded, 233. 
 scanned with much suspicion, 233. 
 (8.) Secrecy, evidence of, 234, 272. 
 
 is fact from which fraud may be inferred, 234. 
 is not fraud by itself, 234 //. 
 secret trust, 234a:. 
 (9.) Suppression or concealment, 235, 236. 
 
 subsequent acts of fraud avoiding transfer, 235. 
 failure to record instrument, 234 n, 235. 
 excusing failure to record, 235, 235 ;/. 
 (10.) Concealment ifi fraud of bankrupt act, 237. 
 
 the test applied, 237. 
 (11.) Absolute conveyance by way of security, 238. 
 
 proving absolute conveyance a mortgage, 238. 
 valid if no fraud intended, 238. 
 effect of secret reservation, 238. 
 convenient cover for fraud, 238. 
 excess of property mortgaged, 2380. 
 (12.) Sales upon credit, 240, 332, 333. 
 not necessarily fraudulent, 240. 
 is a circumstance, 240. 
 when considered fraudulent, 240. 
 (13.) Unusual acts and transactions, 241. 
 many illustrations, 241. 
 partial explanations, 241. 
 neglect to offer explanations, 241. 
 non-attendance of defendant, 241 n. 
 unusual particularity, 241. 
 absence of memoranda, 241.
 
 HC2 References^ INDEX. [are to sections. 
 
 BADGES OF FRAUD — unusual acts and transaction* — continued . 
 
 false receipt, 241. 
 
 exceptional and peculiar conduct, 241. 
 
 absence of means in the vendee, 241, 274. 
 
 painstaking legal formalities, 241. 
 (14.) Effect of relationship, 242. 
 
 calculated to awaken suspicion, 242. 
 
 transaction will be closely scrutinized, 242. 
 
 not necessarily evidence of fraud, 242. 
 
 when coupled with other badge, 242. 
 
 mother and son, 242. 
 (15.) Prima facie cases of fraud, 243, 
 
 comments, 244. 
 BAILEE, cannot set up fraudulent title, 107 n. 
 BANK BILLS., may be reached, 24. 
 BANKRUPT ACT, concealment in fraud of, 237. 
 
 purpose of, to defeat preference, 390 n. 
 
 assignee under, 114. 
 BANKRUPTCY, bond payable on, when void, 364 n. 
 
 assignee in, as complainant, 114. 
 
 discharges as a defense, 294. 
 
 and insolvency discharges, 294. 
 
 property reverts after, 114. 
 
 dower not barred by, 315. 
 BEGIN AND REPLY, right to, 271 n. 
 BENEFICIARIES, as defendants, 128. 
 BENEFITS, estoppel by accepting, 115. 
 BILL IN EQUITY, 68. 
 
 See Creditors' Bills — Complaint. 
 
 merits of relief by, discussed, 51, 60, 68. 
 
 forms of relief, 4, 51-72. 
 
 offer to repay purchase price, 192. 
 BILL OF PARTICULARS, discretionary, 162a, 341^. 
 
 actions, ex delicto, allowed by grace, 162^. 
 
 when granted or refused, 162^. 
 BISPHAM, definition of creditors' bills by, 68. 
 BLACK, J., views as to presumptions, 7. 
 BLATCHFORD, J., views of, 291. 
 
 as to ignorance of fraud, 291. 
 
 limitations in equity, 291. 
 BLINDNESS of assignee, badge of fraud, 338. 
 BONA FIDE purchasers, 21, 369-384. 
 
 See Notice.
 
 References] INDEX. \are to sections. 7CJ 
 
 BONA FIDE— continued. 
 
 rights of, superior to creditors, 369. 
 
 theory of the law, 369. 
 
 payment of consideration constitutes substitution of prop 
 erty, 369. 
 
 statute 27 Eliz., 21. 
 
 plea of, 163. 
 (1.) Title of purchaser, how protected, 369. 
 
 three things must concur, 369. 
 
 must buy without notice, 369. 
 
 must be purchaser for value, 369. 
 
 burden of proof, 158. 
 (2.) Generality of the rule, 370. 
 
 when equities are equal the law prevails, 370. 
 (3 . ) Mortgagee as bona fide purchaser, 371. 
 
 rule in New York, 371. 
 
 pre-existing indebtedness as consideration, 371. 
 ( 4 . ) Withou t notice, 372. 
 
 kinds of notice, 373. 
 
 constructive notice of fraud, 374-382. 
 
 rule in Stearns v. Gage, 375, 376. 
 
 Parker v. Connor, 378. 
 
 facts sufficient to excite inquiry, 378, 380, 381. 
 
 actual belief, 382. 
 
 purchaser with notice, 383, 384. 
 BONA, sed impossibilia non cogit lex, 83. 
 BOND OF GUARDIAN, surety on, 90 n. 
 BOOK ENTRIES, proof of against debtor,27i#. 
 BOOK ROYALTIES, may be recovered, 24, 37. 
 
 remedy to recover, 37. 
 BOOKS OF ACCOUNT, as evidence, 271^. 
 BOTH PARTIES, must be implicated in fraud, 183. 
 BRANDING CATTLE, sufficient delivery, 262 
 BRETT v. CARTER, rule embraced in, 353. 
 BROADWAY NATIONAL BANK v. ADAMS, 367. 
 
 the case criticised, 367. 
 BROTHER, conveyance by sister to, not fraudulent, 5. 
 BURDEN OF PROOF, 158, 208, 271. 
 
 conveyances by husband to wife, 301. 
 
 rests on party asserting affirmative of the issue, 271. 
 
 generally rests on creditor, 271. 
 
 shifting, by showing fraudulent intent, 271. 
 
 as to explanations, 271. 
 48
 
 yCA References] INDEX. [are to sections. 
 
 BURDEN OF PROOF — continued. 
 
 as to consideration, 201. 
 
 to repel presumption, 225. 
 
 right to begin and reply, 271 n. 
 
 as to trust income, 45. 
 
 to secure parties, on plaintiff, 128. 
 BUSINESS, authorizing trustee to continue, 330. 
 
 continuance by insolvent, 143 n. 
 BUSINESS TRANSACTIONS, presumed to be honest, 5. 
 
 CALIFORNIA, fraudulent sale absolutely void, 16 ;/. 
 
 proceedings against debtor's estate, 112. 
 
 voluntary conveyance not presumptively fraudulent, 20c 
 CAMPBELL v. FOSTER, relied on in Nichols v. Eaton, 365. 
 
 discarded in Williams v. Thorn, 45, 365. 
 
 not the law of New York, 45, 365. 
 CANCELLING worthless debt, not a fraudulent alienation, 23. 
 
 debts, when fraudulent, 42. 
 
 by testator, not good against creditors, 42. 
 CAPITAL STOCK, a trust fund, 117, 119, 68 n. 
 
 See Corporation. 
 CARELESS EXPRESSIONS, not poof of fraud, 5. 
 CARELESSNESS, not proof of fraud, 5. 
 CASE, action on the, 62. 
 
 not appropriate against vendee, 62. 
 
 damages too remote, 62. 
 CASE v. BEAUREGARD, discussed, 83. 
 CATTLE roaming over plains, delivery of, 262. 
 
 requisites of the change of possession, 262. 
 
 branding cattle, sufficient delivery, 262. 
 CAUFFMAN v. VAN BUREN, explained, 81. 
 
 re-explained, 86 n. 
 CAUSE, of fraudulent transfers, 2. 
 CAUSES OF ACTION, misjoinder of, 135. 
 
 uniting, 55, 154. 
 CERTIFICATE of division, 407a. 
 CESTUI QUE TRUST, and trustee, 137. 
 
 need not have judgment, 127^. 
 
 decree, when binding on, 137. 
 
 suits in furtherance of, and opposition to trust, 137. 
 
 when to be joined, 137. 
 
 may trace insurance money, 44. 
 CHAIN of evidence, 224.
 
 References^ INDEX. \are to sections. 755 
 
 CHANGE IN ASSIGNMENT, parties cannot make, 3x6 
 CHANGING SECURITIES, existing creditor, 89. 
 CHANGE OF POSSESSION, delivery, 245, 246-267. 
 
 concerning possession, 245. 
 
 defined, 245, 253, 257, 259. 
 
 feature of Twyne's case, 22, 245. 
 
 changes in the law, 245. 
 
 undue prominence of the subject, 245. 
 
 cases of bailments, 245. 
 
 excusing want of change of possession, 263. 
 
 on judicial sale, 265. 
 
 of growing crops, 266. 
 
 under general assignment, 316. 
 
 as regards chattel mortgage, 356^. 
 (1.) Possession as proof of fraud, 247. 
 
 prima facie evidence, 247, 248. 
 
 criticisms of the doctrine, 247. 
 
 statutory policy, 247. 
 
 New England cases, 249. 
 
 rule in New York and various other States, 250, 251. 
 
 repelling inference of fraud, 250. 
 
 rule in Federal tribunals, 250. 
 
 between husband and wife, 253. 
 (2.) Conclusive evidence, when, 251. 
 
 theory of the cases, 251. 
 
 results of the conflicting policies, 252. 
 
 the principle discussed, 252. 
 (3.) Actual change of possession required, 253. 
 
 change cannot be effected by words, 253. 
 
 must be by outward and visible signs, 253. 
 
 assumption of ownership by vendee, 253. 
 
 questions for the jury, 254. 
 
 overcoming the presumption, 255. 
 (4.) Requisites of the change, 253, 256, 257, 258, 259. 
 
 possession within a reasonable time, 256. 
 
 change must be continuous, 257. 
 
 separating stock, 253. 
 
 temporary resumption of possession, 258. 
 
 concurrent possession insufficient, 259. 
 
 possession of bailee, 260. 
 
 no delivery where purchaser has possession, 261. 
 
 overcoming presumption, 255.
 
 7t6 References} INDEX. [are to sections. 
 
 CHANGE OF POSSESSION — continued. 
 
 (5.) When technical delivery is not essential, 262. 
 
 cattle roaming over plains, 262. 
 
 delivery of logs, 262. 
 
 vessel at sea, 262. 
 
 squared timber, 262. 
 (6.) Change of possession of realty, 264. 
 
 rules as to, stated, 264. 
 CHANGE OF VENUE, territorial jurisdiction, 157a. 
 CHARACTERISTICS of fraudulent conveyances, 15. 
 
 made to avoid a debt or duty, 15. 
 
 mutual fraud and injury, 15. 
 CHARITY, gifts to, '2170. 
 CHATTEL MORTGAGES, questions affecting, 347. 
 
 rights of purchaser of, 168. 
 
 when fraudulent, 347-359. 
 
 can be used only as security, 347. 
 
 fraud in vitiates, 357 //. 
 
 of perishable property, 359. 
 
 higher security than land mortgage, 347. 
 
 in excess of debt, 347. 
 
 overstatement of debt, 347. 
 
 altering mortgage, 347. 
 
 creditor at large cannot assail, 347. 
 (1.) Questions affecting, regulated by statute, 347. 
 
 effect of record of, 347. 
 
 repels presumption of fraud, 347. 
 (2.) Mortgage with power of sale, 267, 348-355. 
 
 rule in Robinson v. Elliott, 348-351, 354. 
 
 the case stated, 348. 
 
 similar cases, 349. 
 
 proof extrinsic to the instrument, 350. 
 
 comments in the cases, 351. 
 (3.) Rule opposed to Robinson v. Elliott, 352. 
 
 Brett v. Carter, and similar cases, 353. 
 
 recent opinion of Supreme Court, 353. 
 
 discussion of the principle involved, 354. 
 (4.) Sales for mortgagee' s benefit, 355. 
 
 considered legal, 355. 
 
 New York cases, 355. 
 
 mortgagor acts as agent, 355. 
 (5.) Sales upon credit, 240, 332, 7,2,2,, 35 6 - 
 
 not tolerated, 356.
 
 References] INDEX. [are to sections. J CJ 
 
 CHATTEL MORTGAGES— sales upon credit— continued. 
 
 tend to hinder and delay creditors, 356. 
 (6.) Possession, independent valid transaction, 357. 
 
 void mortgage cannot be transmuted into valid pledge, 357. 
 
 pledge, independent of fraudulent mortgage, sustained, 357. 
 (7.) Right of revocation: reservations, 358. 
 
 when inconsistent with transfer may be avoided, 358. 
 (8.) Rule as to consumable property, 359. 
 
 mortgage upon, fraudulent, 359. 
 
 when valid, 359. 
 
 intent in such cases, 359. 
 (9.) Generally, 356a, 356/;. 
 
 secret trust, 356^. 
 
 change of possession, 356^. 
 
 distinct claims, 3590. 
 CHOSES IN ACTION, covinous transfers of, voidable, 17, 22, 35 . 
 
 conflict in the cases, 33. 
 
 true rule applicable to, ^7,. 
 
 what included in, 7,7, u. 
 CIRCUMSTANCES, proof of fraud from, 5, 13, 224, 225, 227, 281. 
 
 evidence of, 281. 
 
 must be persuasive, 5, 6. 
 
 intent inferred from, 8, 206. 
 
 great latitude in admission of evidence of, 281. 
 
 suspicious, as proof of fraud, 225. 
 
 evidence of, wide range given, 281. 
 
 proof of fraud from, must be strong, 281. 
 
 test as to admission of, 281. 
 
 direct proof of fraud not attainable, 13. 
 CIRCUMSTANTIAL and direct evidence, 5, 5 //, 6, 227. 
 CLAIMS, for pure torts not assignable, 34, 316a. 
 
 injury to property may be reached, 34. 
 
 joinder of, 54, 55. 
 
 prior and subsequent to alienation, 105. 
 CLASSES of fraudulent conveyances, 15. 
 
 three elements must concur, 15. 
 
 of creditors, existing and subsequent, 89. 
 
 of creditors' suits, 68, 68 //. 
 CLASSIFIED demand, sustains bill, 76. 
 CO-CONSPIRATORS, declarations of, 280. 
 
 when admissible, 280. 
 
 must relate to transaction under investigation, 280. 
 
 purpose of v the rule, 280.
 
 7C8 References] INDEX. I are to sections. 
 
 COLLATERAL ATTACK of transfers, rule as to, 69. 
 
 exceptional practice in Louisiana, 69. 
 COLLATERAL, relief to main action, 63. 
 
 facts as evidence of fraud, 281, 282. 
 
 attack on judgment, 270. 
 COLLATERALS, not considered in proving claim, 51 n. 
 COMBINATIONS, in equity, allowed, 108 n. 
 COMITY, between States, 64, 346. 
 
 the principle applied, 64, 346. 
 
 yields in favor of residents, 64, 46. 
 
 recognition of receivers by, 118. 
 COMMON FUND, when liable for expenses, 109. 
 COMMON LAW, suspension of alienation void at, 362. 
 
 statute of Elizabeth declaratory of, 16. 
 
 enjoins integrity, 16. 
 
 rule as to presumption of its existence, 64 //. 
 
 rule as to competency of party, 269. 
 
 maxims of, 20 n. 
 
 fraudulent conveyances at, 16. 
 
 affirmative statute does not repeal, 16. 
 
 how far statute abrogates, 20 n. 
 COMPETENCY, of party as witness, 269. 
 
 defendant may be compelled to testify, 269. 
 
 rule of the common law, 269. 
 
 of wife as witness, 313. 
 COMPLAINANTS, who may be, 107-127, 127*7, 89-106. 
 (1.) Who may assail fraudulent conveyances, 73, 107. 
 
 status of complainants, 73-88, 107. 
 
 conveyances voidable only as to creditors, 107, 395-404. 
 
 question of parties difficult, 107. 
 
 interested parties in esse must be joined, 107. 
 
 sequestrator as, 116. 
 (2.) 'Joinder of complainants, 108, 108 //. 
 
 creditors by several judgments, 108. 
 
 judgment-creditors cannot unite at law, 108//. 
 
 creditors by judgment and decree, 108. 
 
 theory as to joinder, 108. 
 
 motion to intervene discretionary, 108 n. 
 
 laches in application, 109. 
 
 combinations allowed, 108, 108 //. 
 
 hostile claimants cannot join, 108. 
 (3.) Suing for others, 109, no. 
 
 rules regulating, 109.
 
 References ] INDEX. [are to sections. 7 Cg 
 
 COMPLAINANTS — suing for others — continued. 
 
 " and others " interpreted, no. 
 
 equity of a creditor, no. 
 
 in aid of assignment, 109. 
 
 stockholders suing for corporation, 109. 
 
 wife as creditor, no n. 
 (4.) Surety, subrogation of, 111. 
 
 entitled to stand in place of principal, in. 
 (5 . ) Executors and administrators, 112, 113. 
 
 ordinarily bound by decedent's act, 112, 398. 
 
 statutory changes, 112. 
 
 rule in New York, 112. 
 
 may now impeach fraudulent transfers, 112, 113. 
 
 importance of the change, 113. 
 
 liability of representative, 113, 113//. 
 (6.) Assignees, 114, 115. 
 
 assignee in bankruptcy, 114. 
 
 title of, 114. 
 
 title of general assignee, 115. 
 
 when creditor may sue, 115. 
 (7.) Receivers, 116. 
 
 rights of, as complainants, 116. 
 
 disaffirm fraudulent dealings, 116. 
 
 of corporations, 117. 
 
 who represented by, 117. 
 
 foreign receivers, 118. 
 
 rule of comity, 118. 
 
 creditors of corporations, 119. 
 (8.) Rights of various complainants, 120-127. 
 
 sheriff, 81, 120. 
 
 heirs, 121. 
 
 legatee, 121//. 
 
 when heirs cannot sue ,121. 
 
 husband and wife, 122, 298-315. 
 
 widow, when not proper complainant, 121. 
 
 tort creditor, 123. 
 
 conveyance to avoid fine, 123//. 
 
 overseer of the poor, 124. 
 
 creditors having liens, 125. 
 
 purchasers removing incumbrances, 126. 
 
 cestui que trust, 127 a. 
 
 creditors opposing will, 127. 
 
 wife, when creditor, 122.
 
 76o References'] INDEX. \jire to sections. 
 
 COMPLAINT, requisites of, 140-157^. 
 (1.) Recitals of the complaint, 140. 
 
 complainants must be creditors, 140. 
 
 indebtedness must be shown, 140. 
 
 alternative relief, 153. 
 
 in double aspect, 155. 
 
 remedy at law exhausted, 140. 
 
 alleging insolvency, 143. 
 
 concerning consideration, 144. 
 
 general averments, 140, 140 «, 141. 
 (2.) Pleading fraud, 141, 141 //. 
 
 fraud defined, 13, 141. 
 
 alleging fraud, 141, \^\n. 
 
 word " fraud " need not be used, 141. 
 
 material facts must be alleged, 141. 
 
 charging knowledge, 141. 
 
 fraud in subsequent creditors, 141. 
 
 complaint by executor, 143. 
 (3.) Evidence not to be pleaded, 142. 
 
 general certainty sufficient, 142. 
 
 circumstances not to be minutely charged, 142. 
 
 circumstances applied in law, 142. 
 (4.) Pleading in equity, 60, 146. 
 
 more liberal than at law, 146. 
 
 seeking discovery, 147. 
 
 excusing laches, 148. 
 
 New York rule, 149. 
 
 explaining delay; discovery of fraud, 149, 149 //. 
 
 allegations concerning consideration, 144. 
 
 concerning intent, 145. 
 (5.) Multifariousness, 150, 151, 152. 
 
 complaints bad for, 150. 
 
 pleadings held not to be, 151, 152. 
 (6.) Details of complaint, 155-157. 
 
 prayer and verification, 155. 
 
 amendment of, 156. 
 
 description in, 157. 
 
 variance, 155. 
 
 seeking discovery, 147. 
 
 attacking different conveyances, 154. 
 
 lis pendens, 157. 
 COMPOSITION WITH CREDITORS, must be fair, 393. 
 
 illegal preference, 393a.
 
 References^ INDEX. far* to sections. ~C)\ 
 
 COPMROMISE, power in assignee to, 336. 
 
 how construed, 336. 
 
 with creditors, must be honest, 393. 
 
 effect of secret preferential agreement, 393. 
 
 when a fraud upon other creditors, 393. 
 
 antecedent agreement to prefer, 394. 
 CONCEALMENT OF FRAUD, 148, 234, 235. 
 
 pleading concerning, 148. 
 
 in fraud of bankrupt act, 237. 
 CONCLUSIVENESS of judgments, 74, 168, 270. 
 
 of transfers between parties, 395-401. 
 CONCURRENT remedies, legal and equitable, 51, 60. 
 
 cumulative remedies, 65. 
 
 possession insufficient, 259. 
 CONDITIONS treated as void, 361. 
 
 repugnant, are void, 362. 
 
 what are, 363 //. 
 CONDONATION of fraud, perfects title, 370. 
 CONDUCT that is fraudulent, 13. 
 CONFESSIONS, of different judgments, 54. 
 
 may be attacked in one suit, 54. 
 
 set aside in equity, 60. 
 
 collusive confessions avoided, 74 //, 174. 
 
 by administrator, 74 u. 
 
 sufficient to uphold creditors' bill, 76. 
 
 transfer by confessed judgment, 174. 
 
 ratification of, by creditor, 174. 
 CONFORMING testimony to pleadings, 285. 
 CONFUSION, of goods, does not destroy equity, 44, 44 //. 
 CONNECTICUT, change of possession, 251. 
 
 spendthrift trusts in, 367c?. 
 CONSIDERATION, inadequacy of as evidence of fraud, 6. 
 
 disparity must be great, 6, 232. 
 
 allegations of complaint concerning, 144. 
 
 general subject, 207-223. 
 
 need not be in money, 207, 209. 
 
 promise to pay, 209. 
 
 pre-existing debt, 2. 
 
 assumption of liability, 209. 
 
 assumption by surety, 209. 
 
 paid by debtor for third party, 57, 57 //. 
 
 burden of proof, 208. 
 
 rule in New York, 208.
 
 762 References] INDEX. [are to sections. 
 
 CONSIDERATION —continued. 
 in California, 208. 
 
 insignificant, 209. 
 (1.) Concerning consideration and good faith, 207-223. 
 
 defined, 207, 209. 
 
 moral obligations, 215. 
 
 individual and firm debts, 216. 
 
 when important as affecting alienations, 207. 
 
 what is valuable consideration, 209. 
 
 services by member of family, 218. 
 
 husband and wife, 210, 218. 
 
 sufficient consideration, 222. 
 
 insufficient consideration, 223. 
 
 exchange of property, 211a. 
 
 future services, 223. 
 
 alleging, 144. 
 (2.) Voluntary conveyance, 208. 
 
 implies total want of substantial consideration, 208. 
 (3.) Good and valuable consideration, 210/1. 
 
 Judge Story's views, 210 n. 
 (4.) Marriage as consideration, 212, 306. 
 
 the cases reviewed, 212. 
 
 when part of fraudulent scheme, 306. 
 
 no other consideration so highly respected, 212. 
 (5.) Illegal consideration, 214. 
 
 illicit intercourse, 213. 
 ( 6 . ) Proofs of consideration, 219. 
 
 future advances, 217. 
 
 gifts to charity, 217^. 
 
 means of vendee, 219. 
 
 recitals as evidence, 220. 
 
 explaining recitals, 221. 
 
 attacking, 297^. 
 
 may be varied by parol, 221. 
 CONSPIRACY, remedy by action of, 62. 
 
 damages in action for, 62. 
 
 when not cause of action, 62 n. 
 CONSPIRATORS, declarations of, 280. 
 
 why admitted, 280. 
 
 statement of one witness, 280. 
 < '< INSTRUCTION, of instrument, intent gathered from, 10, 322. 
 
 rules of, same in equity as at law, 51. 
 
 of assignments, 20 n, 343, 316a.
 
 References] INDEX. [are to sections. 763 
 
 CONSTRUCTION — continued. 
 
 assignments construed -like other contracts, 20 //. 
 
 of bill, 54, 146. 
 
 statutes as to frauds, liberal, 19, 20. 
 
 rule in Twyne's case, 20, 22. 
 
 principle applying to construction, 20. 
 
 innocent, to be preferred, 20 //. 
 CONSTRUCTIVE FRAUD, does not justify arrest, 191. 
 
 reimbursement allowed in cases of, 192. 
 
 defined by Story, 323. 
 
 is a conclusion of law, 163. 
 CONSTRUCTIVE NOTICE OF FRAUD, 374, 382. 
 
 not applicable to creditor, 106. 
 See Notice. 
 CONTEMPLATION, of future indebtedness, 96, 97, 100, 202. 
 
 subsequent creditors must show, 96, 202. 
 
 of marriage, fraud in, 314. 
 CONTEMPORANEOUS TRANSACTIONS, evidence of, 276. 
 CONTEMPT, depends upon act done, 196 n. 
 CONTINGENT CREDITORS, entitled to protection, 90, 346/'. 
 CONTINGENT REVERSIONARY INTEREST, recoverable, 29. 
 
 remainder not liable to execution, 29 n. 
 CONTINUED, indebtedness, 103. 
 
 possession as evidence of hidden interest, 231a, 245-267. 
 CONTINUOUS, change of possession must be, 257. 
 CONTRACT CREDITORS, rights of, 73, 73 n. 
 CONTRACTS, how interpreted, 268. 
 CONTRAVENING STATUTES, assignments, 324. 
 CONTRIVANCE, to cover up fraud, 149. 
 
 evidence of, 235. 
 CONTROVERSY, all parties interested should be joined, 128. 
 CONVERSION, claim passes to assignee, 316a. 
 CONVEYANCE, hindering creditors by its terms, voidable, 9. 
 
 fraudulent at common law, 16. 
 
 of whole estate, presumption of fraud, 22, 231. 
 
 valid between parties, 395-399. 
 
 the theory, 396. 
 
 fraudulent, defined, 15. 
 
 meaning of word, 14 n. 
 
 of choses in action, fraudulent, 17, 33. 
 
 avoided by subsequent creditors, 101. 
 
 to defeat attachment, void, 11. 
 
 avoided in ejectment, 69, 69 n.
 
 70A References^ INDEX. [are to sections. 
 
 COPARTNERS, and fraudulent alienees as defendants, 54. 
 
 may sue copartner and fraudulent alienee, 54. 
 
 special, cannnot be preferred, 329. 
 
 arrest of, 191. 
 
 debts of, 216. 
 
 preferring claims, 329. 
 
 rights of, limited, 329. 
 
 assignment by, 319/;. 
 
 corporators, when liable as, 139. 
 
 limited partnership assets, trust fund, 329. 
 
 power to assign, 319^. 
 
 various forms of partnership, 319/'. 
 CORPORATION, creditors of, may file bill, 33, 119. 
 
 may be joined in bill as defendant, 128. 
 
 receiver of, rights to bring suit, 117. 
 
 and individuals on same footing, 119. 
 
 no damages for procuring judgment against, 62 ;/. 
 
 organized for fraudulent design, 15. 
 
 assets a trust fund, 117, 119, 139. 
 
 like natural person, 117. 
 
 continuing business when insolvent, 143 n. 
 
 stockholders, suing in right of, 109. 
 
 stockholders of, suit against, 139. 
 
 when corporators liable as partners, 139. 
 
 unpaid subscriptions of, 117. 
 
 change of name to evade liability, 119. 
 
 rules relating to subsequent creditors, applied to, 100. 
 
 when insolvency not ground for receiver, 239 n. 
 
 no discharge granted to in bankruptcy, 294 n. 
 
 rules as to fraudulent conveyances apply to, 199 n. 
 
 assignments by, 346a. 
 COSTS, judgment for, rights of creditors, 90 n. 
 COUNSEL FEES, providing for in assignment, 335. 
 COUNTY, creditor's bill against, 139 n. 
 
 jurisdiction outside of, 406. 
 
 execution issued to, 68. 
 COUPONS, suit for judgment on and mandamus united, 85 ;/. 
 COVINOUS alienations of exemptions, 48. 
 COVINOUS TRANSFERS, 16-17. 
 
 of choses in action, 17, 33. 
 
 valid between the parties, 395-400. 
 CREDIT, sales upon, 11, 240, 332, 333. 
 
 sale on, to son, 11.
 
 References j INDEX. [are to sections. 7^S 
 
 CREDIT — continued. 
 
 effect of, 332, m. 
 CREDITORS, ancient, power of, 1, 1 n. 
 
 rights of in life insurance, 23, 23a. 
 
 rights to proceeds of power, 39. 
 
 lien on trust income, 45. 
 
 must prove trust income excessive, 45. 
 
 burden of proof, 158, 271. 
 
 when judgment unnecessary, 83. 
 
 must have clean hands, 91. 
 
 suing in place of assignee, 115. 
 
 status of. See Status of Attacking Creditors. 
 
 of attacking creditors, 73-88. 
 
 who are not, 91. 
 
 when estopped, 91. 
 
 no right of, to oppose probate of will, 127. 
 
 when they may sue stockholders, 119. 
 
 when wife is creditor, no //, 122. 
 
 policy of the law to protect assets available to, 23-50. 
 
 existing and subsequent, 89-106. 
 
 must invoke process against debtor, 52. 
 
 recitals not binding on, 221. 
 
 See Existing Creditors; Subsequent Creditors. 
 CREDITORS' ACTIONS, purpose of, 4. 
 
 bill to reach surplus income, 360. 
 
 of corporations, relief to, 119. 
 
 who may be complainants, 107-127. 
 CREDITORS AT LARGE, rights of, 52, 73. 
 
 cannot assail debtors' transfers, 73. 
 
 cannot assail chattel mortgage, 347. 
 
 not entitled to injunction, 52, 73. 
 
 rights of, not favored in equity, 73. 
 
 of a decedent, 79. 
 CREDITORS' BILLS, 68. 
 
 See Creditors' Remedies; Supplementary Proceedings. 
 
 why preferable, 60. 
 
 merits of relief in equity discussed, 60. 
 
 object of, in New York, 68. 
 
 to reach equitable assets, 68. 
 
 execution must precede, 68. 
 
 when execution excused, 75. 
 
 filing of, creates lien, 61, 68, 392. 
 
 fraudulent conveyances annulled by, 68.
 
 766 References] INDEX. \ are to sections. 
 
 CREDITORS' BILLS — continued. 
 
 usually regulated by statute, 68. 
 
 distinguished from bill in equity, 68. 
 
 is in nature of a discovery, 68. 
 
 supplementary proceedings, substitute for, 6i. 
 
 simple creditor cannot maintain, 71, 73. 
 
 two kinds of, 68, 68 //. 
 
 complainants in, 107-127. 
 
 defendants in, 128-139. 
 
 of fraudulent grantee, 387. 
 CREDITORS' PROCEEDINGS, assignment cases, 316^ 
 CREDITORS' REMEDIES, 51-72. 
 
 See Remedies of Creditors. 
 
 legal and equitable, 51, 51 n. 
 
 injunction against debtor before judgment disallowed, 52. 
 
 exceptions to the rule, 53. 
 
 joinder of claims, 54, 55. 
 
 land in name of third party, 57. 
 
 relief before and after sale, 58. 
 
 at law and in equity, 59, 60. 
 
 aiding attachment, 53. 
 
 supplementary proceedings, 61, 61 ;/. 
 
 assumpsit, case, conspiracy, 62, 62 n. 
 
 reference not ordered, 62^. 
 
 relief collateral to main action, 63. 
 
 framing issues, 51 n. 
 
 action against rescuers, 62 n. 
 
 remedy governed by lex fori, 64. 
 
 cumulative remedies, 65. 
 
 various illustrations, 65. 
 
 imprisonment of debtor, 66. 
 
 election of remedies, 67. 
 
 creditors' bills, 68. 
 
 equity jurisdiction in personam, 60. 
 
 direct and collateral attack, 69. 
 
 in federal courts, 71. 
 
 recapitulation of, 72. 
 CRIME, fraud in light of, not considered, 3. 
 
 indictment changing fraud, 65 n. 
 CRIMINATING disclosure, party need not make, 165. 
 CROPS, rule as to, 27. 
 
 liable to creditors' remedies, 27. 
 
 on exempt land, 27.
 
 References^ INDEX. [art to sections. J< >J 
 
 CROPS — continued. 
 
 delivery of, 266. 
 CROSS-BILL, affirmative relief, 166. 
 
 homestead protected by, 166. 
 CROSS-EXAMINATION OF PARTY, 281. 
 
 great latitude allowed, 281. 
 CROSS-PETITION, relief by, 166. 
 CUMULATIVE REMEDIES, allowed and disallowed, 65. 
 
 civil and criminal jurisdiction, 65. 
 
 election of remedies, 67. 
 CURTESY, right of, available to creditors, 30. 
 
 reached by creditors' bill, 30. 
 
 initiate, cannot be reached, 50(7. 
 
 DAMAGES, judgment for, not allowed in equity, 51. 
 
 decree must be for an accounting, 51. 
 
 too remote in action of case, 62. 
 
 exceptional cases, 62. 
 
 in action for conspiracy, allowed, 62. 
 
 in assumpsit, 62. 
 DATE OF AGREEMENT, governs creditors' rights, 90. 
 
 antedating instrument, 229. 
 DAUGHTER, claim for services, 218. 
 
 no promise to pay implied, 218. 
 DE MINIMUS NON CURAT LEX, 281. 
 DEATH, of receiver, title on, 189. 
 
 punishment of insolvent under Roman law, 1. 
 
 rule as to in England, 1 n. 
 
 of debtor, effect on lien in supplementary proceedings, 61 //. 
 DEBT, worthless, cancellation of, not fraudulent, 23. 
 
 foundation of the principle, 23. 
 
 forgiven or cancelled, when fraudulent, 42. 
 
 administrator may sue for, 42. 
 
 must be in judgment before filing bill, 73. 
 
 equity not forum to collect, 73. 
 
 property of debtor must be devoted to payment of, 14. 
 
 judgment conclusive as to, 74, 270. 
 
 must be adjudicated, 74, 74 n. 
 DEBTOR, reservation by, avoids conveyance, 10, 32, 272. 
 
 declarations by, 277, 278. 
 
 as defendant in creditors' suit, 128, 129. 
 
 absconding and non-resident, 84. 
 
 rule as to, 128.
 
 768 References} INDEX. [are to sections. 
 
 DEBTOR — continued. 
 
 insolvency of, 273. 
 
 embarrassed, conveyance by, 99. 
 
 injunction against, before judgment, disallowed, 52. 
 
 theory of the law, 52. 
 
 exceptions to the rule, 53. 
 
 trust income for, 45, 360, 364. 
 
 may assign accrued income, 45 n. 
 
 payments made to, 50^. 
 
 effect of imprisonment of, 66. 
 
 secret trust for benefit of, 272. 
 
 punishment of, in early times. 1 n. 
 
 cannot secure delay, 11. 
 
 sale to son, 1 1. 
 DECEDENT, creditors of, 79. 
 
 when must have judgment, 79. 
 
 confusion in the cases, 79. 
 
 theory of the law, 79. 
 
 judgment necessary in New York, 79. 
 
 personal transactions with, 121. 
 DECEIT, action for, innocence presumed, 5. 
 DECEPTIVE ASSERTIONS, and incidents, proving fraud. 7. 
 DECLARATIONS before and after sale, 277. 
 
 as to realty and personalty, 277. 
 
 declarations after sale, 278. 
 
 in presence of vendee, 278. 
 
 of co-conspirators, 280. 
 
 must relate to act characterized, 276. 
 
 of past transactions, 276. 
 
 as to acts sui 'generis with those committed, 280. 
 
 not received to prove the conspiracy, 280. 
 
 admitted to show its scope and extent, 280. 
 
 of one witness as to the conspiracy, 280. 
 
 the test, 276. 
 DECLARATORY, of common law, statutes are, 16. 
 " DECLARE," word commented upon, 16. 
 DECREE, 168-1830. 
 
 See Judgment. 
 
 when conclusive, 168. 
 
 appointing receiver, 170. 
 
 transferring title, 172. 
 
 against fraudulent vendee, 177. 
 
 against wife, 180.
 
 References^ INDEX. [are to sections. 7&Q 
 
 DECREE — continued. 
 
 affecting foreign land, 157*7. 
 
 must accord with relief demanded, 181. 
 
 conform to complaint, 182. 
 
 personal against vendee, 177, 178. 
 DEDUCTION OF FRAUD from facts and incidents, 224, 281, 282. 
 DEED, fraudulent, mistake in not corrected, 396 . 
 
 evidence sufficient to overturn, 6. 
 
 fraud shown by separate instrument, 6. 
 
 not avoided by loose evidence, 6. 
 
 delivery of should be averred, 140. 
 
 recitals in, 2840. 
 DEFECTIVE, complaint, 140. 
 DEFENDANT, parties, 128-139. 
 
 (1.) Debtor as defendant in creditors' actions, 128, 129, 132. 
 
 general rule stated, 128. 
 
 finality to litigation the object, 128. 
 
 conflict in the cases, 128, 129. 
 
 when debtor not necessary defendant, 129. 
 
 result of the cases, 129. 
 
 defendants need not be equally guilty, 130. 
 
 plaintiffs' duty to secure parties, 128. 
 (2.) Fraudulent grantee must be joined, 131. 
 
 the reason, 131. 
 
 New York cases, 131. 
 
 parties to intermediate conveyances, 131. 
 (3.) Assignee and receiver, 133. 
 
 assignee of a firm a defendant, 133. 
 
 raising objection to non-joinder, 133, 134. 
 (4.) Executors, administrators, heirs, and legatees, 136. 
 
 rule as to joinder of, as defendants, 136. 
 
 Cornell v. Radway, 136 n. 
 
 result of the cases, 136. 
 (5.) Trustee and cestui que trust, 137. 
 
 distinction in the cases, 137. 
 
 affirmance and disaffirmance of the trust, 137. 
 (6.) Generally, 132, 136, 138, 139. 
 
 stockholders, 139. 
 
 corporation as party with stockholders, 128. 
 
 beneficiaries as defendants, 128. 
 
 conveyance pending suit, 132a. 
 
 bringing in representatives, 132^. 
 
 suing directors, 132a. 
 49
 
 770 References} INDEX. [are to sections. 
 
 f ) K 1'' K \ I > A N T — generally — continued. 
 
 cestui que trust, 137. 
 
 parties having liens, 138. 
 
 arrest of, 191. 
 DEFENSES, as to, 286-297. 
 See Evidence — Intention — Consideration — Badges of Fraud. 
 
 " forms " no protection, 286. 
 
 transaction judged by real character, 286. 
 
 principal defenses, 286, 369-371. 
 
 rebutting fraud, 158. 
 
 of discharge in bankruptcy, 294 ;/. 
 
 imprisonment of debtor, 66. 
 
 against attachment, 81. 
 
 another action pending, 286a. 
 
 attacking judgment, 286^. 
 
 set off, 297a. 
 
 attacking consideration, 297^. 
 
 controversies not separable, 297*-. 
 
 statute of frauds, 293*7. 
 (1.) Laches as a defense, 287. 
 
 excusing apparent, 148, 149. 
 
 equity will not aid party guilty of, 287. 
 
 stale demands disallowed, 287, 289. 
 (2.) Lapse of time, 109, 288, 289. 
 
 constitutes a defense, 288. 
 
 various illustrations, 288, 289. 
 (3.) Discovery of the fraud, 290. 
 
 statute does not begin to run until, 290. 
 
 effect of a different rule, 290. 
 
 Judge Blatchford's views, 291. 
 (4.) Statute of limitations, 292, 293. 
 
 runs from notice of fraud, 292. 
 
 must be pleaded as defense, 292. 
 
 limitations in equity, 293. 
 (5.) Insolvency or bankruptcy discharges, 294. 
 
 have no extra-territorial force, 294. 
 
 not conclusive on non-residents, 294. 
 
 the reasons stated, 294. 
 
 pleading discharge, 294 ;/. 
 (6.) Generally, 295. 
 
 existing and subsequent creditors, 96-101, 295. 
 
 fraud upon subsequent creditors, 100, 295. 
 
 what sheriff must show against stranger, 297.
 
 References] INDEX. \ arc to sections. 77 I 
 
 DEFENSES —generally — continued. 
 
 by bailee, 107 //. 
 DEFINITION of fraud, none possible, 13. 
 
 judgment of law on facts and intents, 13. 
 
 undue influence, 13 //. 
 
 of insolvency, 273. 
 
 of badge of fraud, 225. 
 
 of general assignment, 316. 
 
 of fraudulent conveyances, 15. 
 
 of creditors' bill, 68. 
 DEFRAUDED VENDOR, tracing fund, 44. 
 
 relief to, 399. 
 DEGREES of guilt, 399, 400. 
 DELAWARE, spendthrift trusts, 367a. 
 
 change of possession, 251. 
 DELAY, sales upon credit, 240, 332, ^t,t,. 
 
 exceptional rule, 2>Z2> a - 
 
 and hindrance, 11, 318. 
 
 applied to general assignments, 318, 2,2>Z- 
 
 defraud, and hinder, n. 
 
 refers to time, 318. 
 
 hindrance to obstacles, 318. 
 
 debtor cannot secure, 318. 
 DELAY OF CREDITORS, 11, 318. 
 
 and hinder, 11. 
 
 explaining, in pleading, 149. 
 
 refers to time, 318. 
 
 hindrance to obstacles, 318. 
 
 debtor cannot secure, 11. 
 DELIVERY, 245-267. 
 
 See Change of Possession. 
 
 essential to validity of sale as against creditors, 245-267. 
 
 failure to effect, presumption of fraud, 248. 
 
 conflicting policies as to, 252. 
 
 must be actual, 253. 
 
 must be continuous, 257, 258. 
 
 of growing crops, 266. 
 
 of possession of realty, 264. 
 
 when not essential, 261, 262. 
 
 symbolical, 262. 
 
 of deed should be averred, 140 //. 
 
 assignment takes effect from, 316a. 
 DENIAL IN ANSWER, 158-162.
 
 772 References^ INDEX. [are to sections. 
 
 DENIAL IN A N S \Y E R — continued. 
 
 particularity of, 162. 
 
 of fraud or notice,, 163. 
 DENYING FRAUD or notice, 163. 
 DESCRIPTION in complaint, 157. 
 
 assets need not be specifically disclosed, 157. 
 
 sufficient to operate as lis pendens, 157. 
 
 discovery may be called for, 157. 
 
 in marriage settlement, 157 n. 
 
 vague, as badge of fraud, 230. 
 
 amendment of complaint, 156. 
 DEVICES, ineffectual" against creditors, 15. 
 DEVISE OF PROFITS is devise of land, 362. 
 DIRECTORS, suits against, 1330. 
 
 rule of liability, i33<?. 
 DIRECT AND COLLATERAL ATTACK, 69. 
 
 necessity for, 69. 
 
 exceptional doctrine in Louisiana, 69. 
 
 merits of rule, discussed, 69. 
 DISBURSEMENTS, of assignee, 319a. 
 DISCHARGE, in insolvency or bankruptcy, 294. 
 DISCOVERY, seeking, 147. 
 
 of fraud, statute begins to run, 290, 291. 
 
 New York rule, 149. 
 
 creditors' bill is in nature of, 68, 68 n. 
 
 advantages of, 68 ;/. 
 
 pleading to the discovery and the relief, 161. 
 
 avoiding discovery, 159, 165. 
 
 of lands, inherited or devised, 157. 
 
 and knowledge, not convertible, 148 n. 
 DISCRETION, granting bill of particulars rests in, 162*7. 
 
 removal of receiver is matter of, 190. 
 DISHONEST PURPOSE not presumed, 5. 
 
 not necessary to defeat conveyance, 8, 9, 10, 382. 
 
 secret removal of property, 234. 
 DISJUNCTIVE, words hinder, delay or defraud used in, 11. 
 DISMISSAL of receiver, 190. 
 
 of assignee, 337. 
 DISPARITY, as to consideration, 6, 232. 
 
 must be glaring, 6, 232. 
 DISPOSED, word construed, 12. 
 DISSOLUTE man, conveyance by, 213 //. 
 DISSOLUTION, appointment of receiver does not effect, 134.
 
 References] INDEX. \are to sections. JJ^ 
 
 DISSOLUTION —continued. 
 
 of firm, exemptions, 48. 
 DISTINCT, claims united, 54. 
 
 defenses, 158. 
 
 claims under chattel mortgage, 359^. 
 DISTINCTION, existing and subsequent creditors, 89. 
 
 fraud in fact and fraud in law, 9, 10, 322, 382. 
 DISTRIBUTEES, reaching money of, 33. 
 DISTRICT OF COLUMBIA, statute of Elizabeth in, 19 //. 
 
 change of possession, 250. 
 DIVIDEND, to defeated creditor, 345/'. 
 
 collaterals not considered, 51 n. 
 DIVISION, certificate of, review, 407^. 
 DIVORCE, after, when wife cannot overturn conveyance, 395 //. 
 
 conveyance to defeat alimony, no //. 
 
 right of wife against trust income, 45. 
 DOMICIL, law of, governs, 64. 
 
 when law of, yields, 65. 
 DOWER RIGHT, creditors may reach, 30. 
 
 before admeasurement, 33. 
 
 in supplementary proceedings, 61. 
 
 relief in cases of fraud on, 70. 
 
 relinquishment as consideration for settlement, 299. 
 DURESS, obtaining instrument under, 347. 
 DUTIES, of assignee, 319^. 
 
 EARLY STATUTES avoiding fraudulent conveyances, 18. 
 
 declaratory of common law, 16. 
 
 object of statutes, 18. 
 
 13 Eliz.,c. 5, and its object, 19. 
 
 its interpretation and construction, 20. 
 
 27 Eliz., c. 4, and its object, 21. 
 EARNINGS, not liable in supplementary proceedings, 61 n. 
 
 exempt for sixty days, 61 n. 
 
 of daughter, 218. 
 
 of wife, 218. 
 
 of members of family, ,218. 
 EDUCATION of debtor, as regards income, 45- 
 EJECTMENT and equitable relief united, 51, 51 n, 54- 
 
 conflict in the cases, 54. 
 
 no receiver in, 187. 
 
 theory of the law, 187. 
 
 rule as to receiver in New York, 187.
 
 774 References^ INDEX. [are to sections. 
 
 EJECTMENT — continued. 
 
 conveyance avoided in, 51. 
 
 by execution purchaser, 57. 
 
 when purchaser may defend in, 69. 
 
 what may be shown, 69 n. 
 
 question of fraud tested by jury in, 123. 
 ELDON, LORD, views of, as to restrictions on life estate, 364. 
 ELECTION OF REMEDIES, 67, 316 n. 
 
 debtor or alienee cannot compel, 67. 
 
 creditor bound by, 67. 
 ELIZABETH, statutes of, 19-21. 
 
 object of, 11, 19. 
 
 to prevent deeds fraudulent in their concoction, 19. 
 
 interpretation and construction of, 20. 
 
 interpretation refers to legal intent, 8. 
 
 bottomed on immoral intention, 9 //. 
 
 merely declaratory of common law, 16. 
 
 universally adopted, 19, 22. 
 
 Mr. Reeves' comments upon, 19. 
 
 preamble to, 25. 
 
 subsequent creditors not mentioned, 98. 
 EMBARRASSED DEBTOR, conveyance by, 99, 273. 
 
 conveyance to defeat attachment, n. 
 
 when considered valid, 99. 
 
 the cases criticised, 99. 
 
 the conclusion drawn from them, 99. 
 EMOTION, intent is, 8, 196, 196 n. 
 
 not conclusive, 197, 322, 382. 
 
 fraud without evil emotion, 8, 382. 
 EMPLOYMENT, of husband by wife, 303. 
 
 of assignors, 345, 390 n. 
 ENFORCING promises of third parties, 43. 
 
 judgment at law, 170a. 
 ENGLAND, Twyne's case in, 22. 
 
 statute of Elizabeth, 19, 21. 
 
 statute of Victoria, 93. 
 ENGLISH STATUTES as to property recoverable, 25. 
 
 concerning fraudulent conveyances, 16, 18, 19-22. 
 ENTIRETY, estate in, husband's interest liable, 29. 
 EQUALLY GUILTY, defendants need not be, 130. 
 EQUILIBRIUM, of evidence, does not prove fraud, 5 
 EQUITABLE fraud, meaning of, 51. 
 
 subrogation, when not applied, 195 n.
 
 References^ INDEX. | a re to sections. JJC 
 
 EQUITABLE — continued. 
 
 estoppel, 287. 
 EQUITABLE INTERESTS, 30. 
 
 frequent subject-matter of creditors' suits, 30. 
 
 action, judgment in, 80. 
 
 suit, 60. 
 
 jurisdiction, 4, 51, 56, 60. 
 
 lev y, 68 , 39 2 - 
 
 in real property, situs governs, 24. 
 EQUITABLE, lis pendens, 392. 
 EQUITIES are equal, law prevails, 370. 
 
 applied to bona fide purchasers, 370. 
 EQUITY, invoked in two cases, 51. 
 
 See Creditors' Remedies. 
 
 in furtherance of remedy at law, 51. 
 
 to reach equitable rights, 51, 60. 
 
 jurisdiction more extensive than at law, 51, 51 n. 
 
 reasons for resort to, 51, 60, 176 n. 
 
 purchase at law either valid or void, 51. 
 
 different rule in equity, 51. 
 
 when jurisdiction exclusive, 56. 
 
 relief before and after sale, 58. 
 
 the jurisdiction explained, 58, 60. 
 
 jurisdiction, its great importance, 60. 
 
 proceeds without regard to forms, 60, 60 n. 
 
 jurisdiction once acquired holds throughout, 63. 
 
 jurisdiction of trusts, 56. 
 
 will restrain fictitious demand, 74 n. 
 
 objection to jurisdiction, 88, 88 n. 
 
 power of, to protect right of dower, 70. 
 
 not remedy to collect debts, 73. 
 
 of a creditor, 1 10. 
 
 pleadings in, rules of, 146. 
 
 limitations in, 293. 
 
 procedure in federal courts, 71. 
 
 cannot create a title, 60 //. 
 EQUITY OF REDEMPTION, available to creditors, 31. 
 
 transaction to conceal, 31. 
 ERRONEOUS, judgment, correction of, 172. 
 ESTATES, in remainder and reversion, 29, 30. 
 
 vested remainder liable for debts, 29. 
 
 attempted exemption of, 29, 360-368. 
 
 contingent reversionary interest, 29.
 
 776 References^ INDEX. \art to sections. 
 
 ESTATES — continued. 
 
 creditors' bills against, 68. 
 
 no preference to vigilant creditors, 392. 
 
 expectant, may be reached, 24. 
 ESTOPPEL, equitable, 287. 
 
 to attack, 316 //. 
 
 notice of alienation, 106. 
 
 judgment is, 168. 
 EVIDENCE, 268-285. 
 See Badges of Fraud — Consideration — Defenses — Inten- 
 tion. 
 
 to prove fraud, 5, 6. 
 
 of solvency, 95. 
 
 creating equilibrium insufficient, 5. 
 
 to annual instrument in writing, 6. 
 
 not to be pleaded, 142. 
 
 to vary recital of consideration, 221. 
 
 recitals in deed, 284a. 
 (1.) Concerning evidence, 268. 
 
 burden of proof, 268, 271. 
 
 how changed, 271. 
 
 answer as, 160. 
 
 personal transactions with decedent, 121. 
 
 omnia prozsumunter contra spoliator em, 281. 
 
 books of account, 27 1</. 
 
 professions of good faith, 279a. 
 
 intention, knowledge, 279^. 
 
 takes a wide range, 268. 
 
 secret trust, 272. 
 
 interpretation of contracts, 268. 
 
 acts and statements of debtor, 268. 
 
 objections must be specified, 269. 
 
 schedules as evidence, 274. 
 (2.) Proof and conclusiveness of judgment, 270. 
 
 judgment essential to creditor's proceeding, 74-77, 270 
 
 evidence until impeached, 270. 
 
 attacking for collusion, 270, 74 n. 
 (3.) Insolvency of debtor, 273. 
 
 application of the term, 273 
 
 who considered solvent, 273. 
 
 evidence of insolvency, 87, 87 n, 273. 
 
 illustrations, 273. 
 
 general repute as to, 273.
 
 References^ INDEX. [a re to sections. JJJ 
 
 EVIDENCE — insolvency of debtor — continued. 
 
 opinion as to, 273, 273 n. 
 (4.) Insolvency of vendee, 274. 
 
 effect of proof of, 274. 
 
 shown by general repute, 274. 
 
 insolvency of corporation, 273, 273 n. 
 (5 . ) General reputation, 275. 
 
 evidence of, admitted, 275. 
 
 tendency and effect of proof of, 275. 
 ( 6 . ) Concerning res gestoz, 276. 
 
 declarations admissible, 276. 
 
 duty of jury to weigh, 276. 
 
 importance of the doctrine, 276. 
 (7.) Declarations, rule as to, 277, 278. 
 
 before sale, admissible, 277. 
 
 theory governing their admission, 277. 
 
 concerning personality, excluded, 277. 
 
 declarations after sale, 277. 
 
 excluded as mere hearsay, 278. 
 
 illustrations, 278. 
 (8.) Possession after conveyance, 279. 
 
 effect of proof of, 279. 
 
 declarations characterizing, 279. 
 
 constitute part of res gestce, 279. 
 (9.) Declarations of co-conspirators, 280. 
 
 in execution of common purpose, 280. 
 
 proposed acts must be sui juris with those committed, 280. 
 
 foundation for, 280. 
 
 prima facie case must be shown, 280. 
 
 admissions of declarations, 280. 
 
 as to past transactions, incompetent, 280. 
 
 not admissible to prove the conspiracy, 280. 
 
 received to show its scope, 280. 
 (10.) Proof of circumstances, 281. * 
 
 must be persuasive, 5, 6. 
 
 great latitude permitted, 281. 
 , objections for irrelevancy, not favored, 281. 
 
 wide range of inquiry, 281. 
 
 must be strong and cogent, 281. 
 
 the test given, 281. 
 
 latitude of the inquiry, 281 n. 
 
 collateral facts, proof of, 281. 
 (11.) Other frauds, 282.
 
 778 References'] INDEX. [_are to sections. 
 
 E V I D E N C E — other frauds — continued. 
 
 proof of commission of, 282. 
 
 intent the object of inquiry, 282. 
 
 other similar acts show it, 282. 
 
 independent acts and declarations, 282. 
 
 scope of the inquiry, 282. 
 
 exception to the rule, 282. 
 (12.) Suspicions insufficient, 3, 5, 6, 283. 
 
 tangible facts must be shown, 283. 
 
 of fraud, not notice of it, 283. 
 (13.) Generally, 284, 285. 
 
 proving value by experts, 284. 
 
 testimony must conform to pleading, 285. 
 
 consideration, 279^, 207-223. 
 EVIDENCE OF FRAUD, generally circumstantial, 13. 
 
 proof of circumstances as, 281. 
 
 great latitude allowed, 281. 
 
 direct proof not attainable, 13. 
 
 the test, 281. 
 
 proof of collateral facts, 281. 
 
 other frauds, 282. 
 
 declarations, 280. 
 EVIDENCE OF INTENTION, when cannot change presumption, 
 
 9, 3 22 , 382. 
 
 when not necessary to establish frauds, 8-10, 382. 
 
 of solvency, 95. 
 
 not to be pleaded, 142. 
 
 answer as, 160. 
 
 of secrecy, 234. 
 
 of wife, 313. 
 
 See Intention. 
 EXAGGERATED, indebtedness badge of fraud, 228. 
 EXCEPTIONS to rule concerning injunction against debtor, 53. 
 
 receivership, when allowed before judgment, 53. 
 EXCESS, of property mortgaged, 238^. 
 
 of debt, taking mortgage in, 347. 
 EXCHANGE, of property, 211a. 
 EXCLUSIVE jurisdiction in equity, 56. 
 
 property not subject to legal process, 56. 
 
 as to choses in action, 22, ^1, 56. 
 
 supplementary proceedings not, 61. 
 
 suits by personal representatives not, 112. 
 EXCUSING want of change of possession, 263.
 
 References^ INDEX. [are to sections. 77Q 
 
 EXCUSING — continued. 
 
 rebutting presumptions of fraud, 263. 
 
 laches, 148. 
 EXECUTION, contingent remainder not liable to, 29 n. 
 
 seat in stock exchange not liable to, 35 //. 
 
 property purchased in name of third party, 57. 
 
 remedy by, 59. 
 
 to county of debtor's residence, 68. 
 
 must precede creditor's bill, 68. 
 
 return of, unsatisfied, 74, 68, 86, 86 n. 
 
 return of officer conclusive, 74. 
 
 when execution excused, 75. 
 
 New York rule explained, 86 //. 
 
 conflict in New York, 86. 
 
 Supreme Court rule, 86 n. 
 
 distinction between realty and personalty as to, 87. 
 
 raising the objection, 88. 
 
 what bill should allege as to, 88. 
 
 where jurisdiction is concurrent, 51. 
 
 selling land under, 72. 
 
 in State where land lies, 83. 
 
 what bill should show as to, 88. 
 
 not reach proceeds of power, 40 n. 
 
 return of, evidence of insolvency, 273. 
 
 purchaser, may bring suit to set aside deed, 371a. 
 EXECUTORS AND ADMINISTRATORS, as complainants, 112, 
 
 "3- 
 
 New York legislation, 112. 
 
 as defendants, 136. 
 
 as fraudulent grantees, 77. 
 
 conveyance binding upon, 112, 113, 398. 
 
 may sue for canceled debt, 42. 
 
 complaint by, 143. 
 
 judgment against, 77. 
 EXEMPTING assignee from liability, 334. 
 
 renders assignment void, 334. 
 
 theory of the law, 334. 
 EXEMPTIONS, rule as to, 46-50, 50a. 
 
 policy of the law, 365. 
 
 no restriction on legislation, 46 n. 
 
 reservation of, in assignments, 326. 
 
 does not render assignment void, 326. 
 
 do not pass by assignment, 316a.
 
 ySO References^ INDEX. [are to sections. 
 
 EXEMPTIONS — continued. 
 
 receiver gets no title to, 46. 
 
 endure for life-time, 46. 
 
 aversion to exemptions not statutory, 360. 
 
 fraudulent purchase of, 47. 
 
 purchase on eve of insolvency, 47. 
 
 covinous alienations of, 48. 
 
 conflicting cases, 49. 
 
 forfeited by fraud, 49. 
 
 equivocation as to, 49, 49 n. 
 
 what cannot be reached, 50a. 
 
 crops on exempt lands, reached, 27. 
 
 pension money in lands, 46. 
 
 must exist at date of transfer, 46. 
 
 partnership property not exempt, 48. 
 
 on dissolution of firm, 48. 
 EXHAUSTING LEGAL REMEDY, 73, 86. 
 
 object of, 73. 
 
 establishes claim, 73. 
 
 saves debtor from interference, 52, 73. 
 EXISTING CREDITORS, 89-95. 
 
 See Subsequent Creditors. 
 (1.) Classes of creditors, existing and subsequent, 8c 
 
 who are existing creditors, 89. 
 
 renewal creditor, 89. 
 
 change of securities, 89. 
 
 subsequent creditors, 89, 96, 97. 
 their respective rights, 89, 96. 
 
 may join in Alabama, 108 ;/. 
 
 decree when not binding, on, 168. 
 (2.) Contingent creditors, 90. 
 
 wife and surety as creditors, 90. 
 
 indorser and warrantor, 90. 
 
 municipal corporation, 90. 
 
 date of agreement governs, 90. 
 
 tort claimant, 90. 
 
 remainderman, 90. 
 
 who are not creditors, 91. 
 
 acquiescence, 91. 
 
 transfer of right to sue, 92. 
 (3.) Voluntary alienations as to, 93, 94. 
 
 presumptively fraudulent, 94. 
 
 New York rule, 93.
 
 References^ INDF.X. f arc to sections. "Si 
 
 EXISTING CREDITORS — voluntary alienations — continued. 
 
 modern English rule, 93. 
 
 early conflict as to, 93. 
 
 recent cases, 94. 
 EXPECTANT ESTATE, may be reached, 24. 
 
 assignment of, vacated, 29. 
 EXPENSES, when chargeable to common fund, 109. 
 
 of rescuing property, 109. 
 EXPERTS, proving value by, 284. 
 
 illustrations, 284. 
 EXPLAINING delay, discovery of fraud, 149. 
 
 judgment, 270. 
 
 recitals of consideration, 221. 
 
 contradicting allegations of deed, 221. 
 
 substituting valuable for good consideration, 221. 
 EXPLICIT PROOF, not exacted, 5. 
 EXTENDING UNUSUAL CREDIT, as evidence of fraud, 241. 
 
 FACTS, sufficient to excite inquiry, 379, 380, 381. 
 
 as notice of fraud, 379-381. 
 
 may be implied, 142. 
 
 means of knowledge, 381. 
 
 the test, 380, 381. 
 
 admitted in pleading, 285. 
 
 equity deals with, 60. 
 
 to establish fraud, 5. 
 
 must be substantial, 5. 
 FAILURE, to record, ioi, 235, 236, 237. 
 FAIR PREPONDERANCE, fraud must be shown by, 271. 
 FAMILY, services by members of, 218. 
 
 by daughter to debtor, 218. 
 
 no promise to pay implied, 218. 
 
 wife to husband, 218. 
 
 when claim of cannot be collected, 218. 
 
 insurance for, 23. 
 FATHER, gift by, improvements, 296. 
 
 to son, sale by, 242. 
 FEDERAL COURTS, rules of procedure in, 61 «, 71. 
 
 supplementary proceedings in, 61 ;/. 
 
 not allowed in State court on federal judgment, 61 «, 78, 
 78 n. 
 
 rules of property in, 20, 71. 
 
 local rules govern in, 20.
 
 782 References'] INDEX. [are to sections. 
 
 FEDERAL COURTS— continued. 
 
 State decisions followed, 71. 
 
 as to fraudulent and voluntary assignments, 71. 
 
 pauper litigants in, 71. 
 
 chancery practice prevads, 51, 71. 
 
 suit against stockholder in, 139. 
 
 judgment in, 78, 78 ;/. 
 
 bill in equity in, 68 ;/. 
 
 no bill by simple contract creditor, 71. 
 
 not interefere with State receiver, 117. 
 
 as to change of possession, 250. 
 FEDERAL TRIBUNALS, procedure in, 71, 407, 4°7<*- 
 
 heirs and devisees as parties, 136. 
 
 local rule governs in, 20. 
 FICTITIOUS CONSIDERATION, recital of, badge of fraud, 228. 
 
 either in mortgage or conveyance, 228. 
 
 to be considered by jury, 228. 
 
 not fraud per se, 228. 
 
 immaterial mis-recital, 228. 
 
 to be fraudulent must be intentional, 228. 
 FICTITIOUS, grantee, setting aside deed, 131. 
 
 claim may avoid assignment, 320. 
 
 debt, avoids assignment, 345. 
 FIELD OF INQUIRY, must be broad, 6. 
 FILING chattel mortgage, 347 n. 
 
 FINES, conveyance to defeat, attached by State, 123 n. 
 FIRM, judgment creditor of, suit by, 108. 
 
 exemptions of, 48. 
 
 assignments by, 319^. 
 
 fraud in firm creditors, 216. 
 
 assets of, how distributed, 216. 
 FLEXIBLE JURISDICTION OF EQUITY, 60, 193 n. 
 FORECLOSURE, proceedings attacking fraudulent conveyance, 63. 
 
 in surplus-money proceedings, 63. 
 
 receiver in foreclosure, 187 n. 
 FOREIGN JUDGMENT, does not have the force of domestic 
 judgment, 78. 
 
 rule as to, stated, 78. 
 
 federal court judgment, 78, 78 n. 
 
 government, claims against, pass to asignee, 114. 
 
 assignments, 346. 
 
 statutes, no force ex proprio vigore, 405 /;. 
 
 receiver as complainant, 118.
 
 References] INDEX. [are to sections. "X ^ 
 
 FOREIGN RECEIVERS, recognized by comity, m 
 
 FORMS, equity looks beyond, 60. 
 
 FORMS OF LAW, observance of, will not save transaction, 5, 5 //. 
 
 FORMS OF RELIEF, 4, 51-72. 
 
 See ( 'kkditoks' Rkmi di i 
 
 not regarded in equity, 60. 
 
 in cases of fraud on wife, 70. 
 FRAMING ISSUES, for jury, 51, 5. n. 
 FRAUD, divisions of, 10. 
 
 never presumed, 5, 5 ;/, 6. 
 
 under forms of law, 5 n. 
 
 not proved positively, 7. 
 
 tested by human nature, 7. 
 
 more extensive signification in equity than at law, 60. 
 
 compounded of law and fact, 13 n. 
 
 equitable, 51. 
 
 rule as to pleading, 141. 
 
 fraud in law and fraud in fact, 10. 
 
 no definition of, 13. 
 
 proof of, 5, 6. 
 
 evidence must be persuasive, 5. 
 
 loves darkness, 6. 
 
 under bankrupt act, 13 ;/. 
 
 as to existing creditors, 89-95. 
 
 as to subsequent creditors, 96-106. 
 
 lies in intent to deceive, 141. 
 
 general charge of, insufficient, 141. 
 
 indicia or badges of, 224-244. 
 FRAUD INFERRED FROM TRUST, an inference of law, 10 //. 
 FRAUD IN LAW and fraud in fact, 9, 9 //, 10, 382. 
 
 distinction discussed, 9, 9 /z, 10, 382. 
 
 different intent cannot be shown, 9. 
 
 cases explained, 9, 9 n, 10. 
 FRAUD, MUST BE PROVED, 5, 5 «, 283. 
 
 one of recognized heads of equity jurisdiction, 60. 
 
 is intention carried out by hurtful acts, 13, 196. 
 
 as a legal deduction, 10. 
 
 to annul written instrument, 6. 
 
 possession as proof of, 247. 
 
 character of, 6. 
 
 perpetrated in secret, 6. 
 
 may be unintentionally committed, 8. 
 
 pleading fraud, 141.
 
 784 References'} INDEX. \are to sections. 
 
 FRAUD, MUST BE PROVED — continued. 
 
 word need not be used, 141. 
 
 cannot be denned, 13. 
 
 nature and effect of, considered, 13. 
 
 constructive, 323. 
 
 suspicions as to, insufficient, 5, 283. 
 
 shown from circumstances, 281. 
 
 the test, 281. 
 
 equilibrium will not establish, 5. 
 
 disconnected acts as evidence, 280, 282. 
 
 in conveyances, characteristics, 15. 
 
 badges of, 224-244. 
 
 in fact and in law, 8, 9, 10, 322, 382. 
 
 as to existing creditors, 82-95. 
 
 as to subsequent creditors, 96-106. 
 
 irregularities and carelessness, 5. 
 FRAUDS, statute of, agreement out of, 296. 
 FRAUDULENT, conveyance of equity of redemption, 31. 
 
 purpose, when harmless, 107. 
 FRAUDULENT CHATTEL MORTGAGES, 347-359^- 
 
 See Chattel Mortgages. 
 FRAUDULENT CONVEYANCES, defined, 15. 
 
 classes of, 15. 
 
 necessary elements of, 15. 
 
 at common law, 16. 
 
 statutes declaratory, 16. 
 
 early statutes avoiding, 18. 
 
 property that may be reached; 23-50. 
 
 grantee, creditors of, 387. 
 
 liability between, 388. 
 
 grantees sharing in recovery, 389. 
 
 valid between the parties, 395-400. 
 FRAUDULENT GENERAL ASSIGNMENTS, 316-346. 
 (1.) Voluntary assignments, 316. 
 
 general comments, 316. 
 
 claimed to be American devise, 316. 
 
 defined, 316. 
 
 made in absence of statute, 316. 
 
 right exists at common law, 316. 
 
 change of possession, 316. 
 
 property transferred, 3160. 
 
 property that does not pass, 316a.
 
 References | INDEX. [are to sections. 785 
 
 FRAUDULENT GENERAL ASSIGNMENTS— voluntary— cont'd. 
 
 delivery of assignment essential, 316a, 316a, ;/. 
 
 assent of assignee, 316/;. 
 
 rights of assignee, 319a. 
 
 trust fund in assignee's hands, 319a. 
 
 antecedent agreement to prefer, 342^. 
 
 property not in custodia legis, 316. 
 
 assignee quasi-public officer, 316. 
 
 assignee not officer of court, 316. 
 
 must obey provisions of assignment, 316. 
 
 derives authority from instrument, 316. 
 
 control of court over, 316. 
 
 parties cannot change character of, 316. 
 
 assignor cannot substitute successor to assignee, 316. 
 
 assent of assignee, 316^. 
 
 creditors' proceedings, 316c 
 
 word void construed, 317. 
 (2.) Delay and hindrance, 31 8. 
 
 meaning of delay, 318. 
 
 of hindrance, 318. 
 
 instances, 31S. 
 (3.) Intent affecting assignment, 319. 
 
 actual intent not exclusive test, 319. 
 
 of assignor generally governs, 319. 
 
 conflict in the cases, 319. 
 
 drift of the cases, 319. 
 
 suggestions as to correct procedure, 319. 
 (4.) Partnership assignments, 319^. 
 
 courts protect from creditors, 319^. 
 
 all partners must join, 319^. 
 
 special partner need not join, 319^. 
 
 limited partnership, cannot prefer, 319^. 
 
 acknowledgment of instrument, 319^. 
 
 preferring a partner, 329. 
 (5.) Fraud must relate to instrument itself, 320. 
 
 subequent illegal acts immaterial, 320. 
 
 independent acts not considered, 320. 
 
 preferring fictitious claim, 320. 
 
 effect of omission from schedules, 320. 
 (6.) Good faith, 321. 
 
 means " sincerity or honesty of purpose," 321. 
 
 presumption of, appertains to asignments, 321. 
 
 mistake not fatal, 321. 
 50
 
 786 References] INDEX. \are to sections. 
 
 FRAUDULENT GENERAL ASSIGNMENTS— continued. 
 
 (7.) Void on its face, 9, 10, 322. 
 
 instances given, 322. 
 
 actual motive or belief immaterial, 322. 
 
 power to reform, 322a. 
 
 purchaser under void assignment, 322a. 
 (8.) Contravening statutes, 324. 
 
 burden on creditor, 324. 
 
 may be avoided, 324. 
 
 an illustration, 324. 
 (9.) Transfers to prevent sacrifice, 325. 
 
 will be set aside, 325. 
 (10.) Reservations, 326. 
 
 when fatal to instrument, 272, 326. 
 
 for debtor's benefit, 326. 
 
 of exempt property not fraudulent, 326. 
 
 reserving surplus, 327. 
 
 apparent conflict in the cases, 327. 
 
 preferring claims in which assignor is partner, 329. 
 (11.) Releases exacted in assignments, 328. 
 
 looked upon with disfavor, 328. 
 
 render assignments fraudulent, when, 328. 
 
 different cases considered, 328. 
 (12.) Authorizing trustee to continue business, 330, 331. 
 
 when such provisions permissible, 331. 
 
 power to continue a school illegal, 331. 
 (13.) Delay sales upon credit, 332, 333. 
 
 creditors' right of immediate payment, 332. 
 
 holding realty two years void, 332. 
 
 the cases reviewed, 332, 333. 
 
 exceptional rule, 333a. 
 (14.) Exempting assignee from liability, 334. 
 
 renders assignment void, 334. 
 (15.) Other features, 335, 337. 
 
 authority to compromise, 336. 
 
 fraud of assignee, 337. 
 
 providing for counsel fees, 335. 
 
 assets exceeding liabilities, 340. 
 
 excessive preferences, 341a. 
 
 preferences to laborers, 341b. 
 
 notice to preferred creditors, 341^. 
 
 bill of particulars, 34id. 
 
 assignments to prevent preference, 341. 
 
 threatening to make assignment, 342.
 
 References] INDEX. [art i ■ 
 
 FRAUDULENT GENERAL ASSIGNMENTS — continued. 
 
 (16.) Transfers inuring as assignments, 339. 
 
 White v. Cotzhausen, 339a. 
 
 conflict in the cases, 339a. 
 (17.) Incompetency ami removal of assignee, 337, 
 
 badge of fraud, 338. 
 
 word " incompetency " construed, 3 
 
 conflicting interests, 337. 
 
 selection of blind assignee, 3 
 (18.) Construction of assignment, 20 ;/, 343. 
 
 rules applicable to, 20 n, 343. 
 
 explaining obnoxious provisions, 344. 
 
 assignments held void, 345. 
 
 insufficient grounds of attack, 345a . 
 (19.) Foreign assignments, 346. 
 
 operate as matter of comity, 346. 
 (20.) Generally, defeated creditor entitled to dividend, 345^. 
 
 assignments by corporations, 346a. 
 
 contingent creditors, 346^. 
 
 preference on eve of, 391^. 
 FRAUDULENT GRANTEES, valid title from, 386. 
 
 as defendants, 131. 
 
 proceedings futile, if omitted, 131. 
 
 intermediate grantees, 131. 
 
 as trustees, 385. 
 
 creditors of, 387. 
 
 liability between, 388. 
 
 sharing in recovery, 389. 
 FRAUDULENT INTENT, fact for jury, 9, 204. 
 
 allegations concerning, 145. 
 
 when res adjudicata, 203. 
 
 where consideration is adequate, 201. 
 
 proving intent, 206. 
 
 of agent binding on principal, 198. 
 
 actual, not decisive, 197, 382. 
 
 mutuality of participation in, 199, 302. 319. 
 See Intention. 
 FRAUDULENT JUDGMENTS, removed, 51 n 
 
 set aside in equity, 60. 
 FRAUDULENT PARTY, not protected from loss, 195. 
 FRAUDULENT PURCHASES OF EXEMPTIONS, 47- 
 
 legality of, 47. 
 
 conflicting cases as to, 49, 50. 
 FRAUDULENT transferee, judgment against, 3 n, 176-1S0.
 
 788 References^ INDEX. [are to sections. 
 
 FRAUDULENT TRANSFERS, prevalence of, 2. 
 
 cause of, 2. 
 
 of choses in action, 17, 33. 
 
 of exemptions, 47. 
 
 early statutes avoiding, 18. 
 
 characteristics and classes of, 15. 
 FRAUDULENT vendee, liability of, 176, 178, 195. 
 FUND may be traced by creditors, 44. 
 
 followed, in new investment, 44. 
 
 the rule illustrated, 44. 
 
 lien on the mass, 44 //. 
 FUTURE ADVANCES, rule as to, 217. 
 
 judgment or mortgage for, 217. 
 
 should be shown on face of lien, 217. 
 FUTURE INCOME, creditor may reach, 45. 
 FUTURE, schemes of fraud, 96, 202. 
 
 creditors, intent to defraud, 98, 202. 
 FUTURE SERVICES, as consideration, 223. 
 
 GENERAL ALLEGATIONS of fraud of no value, 141. 
 GENERAL ASSIGNMENT, 316-346. 
 
 See Fraudulent General Assignment. 
 
 will supplant suit, when, 23. 
 
 character of, 316. 
 
 property transferred by, 316^. 
 
 surviving partner may make, 319/', 329. 
 
 all partners must join, 319^. 
 
 when void, 345. 
 
 by corporation, 3460. 
 
 specific assignment is not, 339. 
 
 threatening to make, 342, 342 /;. 
 
 construction of, 343. 
 
 assignee under, as complainant, 115. 
 GENERAL DENIAL, evidence under, 158. 
 
 valid title may be shown under, 158. 
 GENERAL REPUTATION, evidence of, allowed, 275. 
 
 as to absence of means in vendee, 274. 
 
 as to want of credit, 275. 
 
 is competent, 275. 
 GENERALITY of gift or conveyance, 22, 231. 
 
 evidence or badge of fraud, 231. 
 
 commented on in Twyne's case, 22. 
 
 views of Lowell, J., 231. 
 
 creating violent presumption of fraud, 231.
 
 References^ INDEX. [are to sections. 789 
 
 GENERALITY - continued. 
 
 considered unusual and extraordinary, 231. 
 
 various comments, 231. 
 GENEROSITY, when not evidence of fraud, 5. 
 GEORGIA, spendthrift trusts in, 367a. 
 GIFT, condition repugnant to, void, 362. 
 
 oral, title by, 296. 
 
 of small value not fraudulent, 41. 
 
 from husband to wife, 309. 
 
 of labor, valid, 50^. 
 
 as badge of fraud, 309. 
 
 generality of, as evidence of fraud, 22, 231. 
 
 to charity, 217^. 
 GOOD and valuable consideration, 210. 
 
 defined by Story, 210 n. 
 
 See Bona Fide Purchaser. 
 GOOD CHARACTER, evidence of, 275. 
 GOOD FAITH, settled presumption of law, 6. 
 
 the vital question in these suits, 196. 
 
 and consideration, 207. 
 
 defined, 321. 
 
 relating to fraudulent assignments, 321. 
 
 protecting purchasers, 369, 372. 
 
 professions of, 279^. 
 GRANT, conditions repugnant to void, 362, 363, 367. 
 
 of entire estate, evidence of fraud, 231. 
 GRANTEE, fraudulent, as trustee, 385. 
 
 creditors of, 387. 
 
 when they may seize the property, 387. 
 
 doctrine of apparent ownership, 387. 
 
 liability between, 388. 
 
 sharing in recovery, 389. 
 
 enforcing fraudulent deed, 402. 
 GRANTING AMENDMENTS, discretionary, 156. 
 GRANTOR'S BENEFIT, transfer invalid, 211. 
 
 secret trust for, 272. 
 
 conveyances fraudulent, 272. 
 GRANTORS, defrauded of property, 399, 4°°- 
 
 aid extended to, 399, 400. 
 
 degrees of guilt, 399. 
 GRATUITY, cannot be transformed into a debt, 209. 
 GRAY, PROFESSOR, views as to spendthrift trusts, 364 n, 366. 
 GROSSLY inadequate consideration, 207, 232. 
 
 will overturn transfer, 6, 232.
 
 INDEX. 
 
 GROWING CROPS, change of p :- :66. 
 
 unposs *66. 
 
 cc: . - ::6. 
 
 available to ::: _ it - : - 
 
 : ■ ; : i ■ - - I - : - . : " 
 GUILTY KNOWLEDGE, of debtor's 
 
 ARSAY. - sale " 
 
 •• hearty eviction 
 
 BE IRS - s, 121. 
 
 ■ :per parties, 121. 
 t impeach a 
 
 121. 
 testim . _ . f2i. 
 rea g 53- 
 
 i • - 
 HINDEJ - stmed, ii, ii *. 
 
 5, II. 
 
 -:.t to do either - B&c " n. 
 
 ect of the statute, n. 
 
 t, 24 556. 
 
 dela; - to time, 318. 
 
 hindrance.- obstacles 
 
 HINDRANCE AND DELA. - :i. 
 
 1 between, 1 1 n. 
 I tei - ' : • 
 es upon ere t, 24c $32 - 
 
 HOMESTEAD, abandcr. 
 %< 
 
 exemp- 
 
 rill, 166. 
 HONEST PURPOS :. -. 6. 
 
 HONESTY, presumption of, pr e 
 : D 
 es to be impu:-: 
 
 . by deb: r — 
 HOSTI1 
 
 HUMAN NATURE, know!- g
 
 HUSBAND AN1 
 
 f 
 
 confidence 
 
 frauds in tl 
 
 hush 
 
 husband m 
 
 when conv< 
 
 : i. ~ : : r f 
 
 - : : z : u r. i 
 
 '. v. . .. . :.-... 
 
 Transactumk 
 
 K, 122, a 
 
 
 . ..- - 
 
 
 " 
 
 
 
 
 
 
 l:;:r ;: v;:e ; . . 
 
 
 -• 
 
 
 -: ;•• ::' ■ .:- : ;_ 
 
 
 in her sepa ite 
 
 - 
 
 
 
 : 
 
 
 aero, 299. 
 
 : : : 
 
 4 - 
 
 -mption of ownership 
 
 : 
 
 :. rer.ier ?r::le~e~: zziziz -: .: ;c: 
 
 (6.) Husband 
 
 1 - . - 
 
 wife may se title t ere 
 
 r. ;: v.\ r : r .. ; ; :: :::;:: ;. . ..; rx;s:s. ;c; 
 
 3 . 
 
 amour.. $06.
 
 7Q2 References'] INDEX. [are to sections. 
 
 HUSBAND AND WIFE — marriage settlements — continued. 
 
 when avoided, 306. 
 
 post-nuptial settlements, 307. 
 
 purchase after marriage, 308. 
 
 gift from husband to wife, 309. 
 (9.) Fraudulent conveyances in contemplation of marriage, 314. 
 
 illustrations of the enforcement of the rule, 314. 
 
 applies to both husband and wife, 314. 
 
 fraudulent transfers affecting dower, 315. 
 (10.) Life insurance, 23, 23 n, 312. 
 
 creditors' rights in, 23, 23 n. 
 (11.) Estate in entirety, 29. 
 
 husband's interest liable, 29. 
 
 ILLEGAL, consideration is no consideration, 214. 
 
 claim, insufficient, 77. 
 
 composition preference, 393a. 
 ILLICIT INTERCOURSE, illegal consideration, 213. 
 ILLINOIS, return of execution, 86 ;/. 
 
 trust income cases, 3670. 
 IMPEACHING, judgment, 78 n. 
 
 burden as to, 74. 
 IMPOSSIBLE, to secure judgment, 84. 
 IMPOUNDING, proceeds of fraudulent sale, 175. 
 IMPRISONMENT, of debtor, effect of, 66. 
 
 constitutes satisfaction of claim during its continuance, 66, 
 
 termination of revives remedy, 66. 
 IMPROVEMENTS, recovering, 26, 26 //, 192 n, 193 n. 
 
 on another's land, 26. 
 
 the law follows them, 26. 
 
 temporary or perishable, 26. 
 
 by husband on wife's land, 26. 
 
 to support gift, 296. 
 INADEQUACY of purchase price, 232. 
 
 as evidence of fraud, 6, 232. 
 
 not per se fraudulent, 232. 
 
 illustrations, 232. 
 
 does not per se prove fraud, 232. 
 
 unless extremely gross, 6, 232. 
 
 the test, 232. 
 
 is fact calling for explanation, 232. 
 INCEPTION OF TRANSACTION, fraud must be in, 227. 
 INCHOATE INTEREST may be reached, 30.
 
 References^ INDEX. [are to sections . 7g ■} 
 
 INCHOATE INTEREST —continued. 
 
 curtesy and dower, 30. 
 
 unassigned dower, 61. 
 INCOME, surplus may be reached, 45, 360. 
 
 See Spendthrift Trusts. 
 
 the rule applied, 45, 360. 
 
 exempt earnings for sixty days, 61 n. 
 
 creditors' lien on, 45. 
 
 burden of showing, 45. 
 
 interest of wife in, 45. 
 
 station in life of debtor, 45. 
 INCOMPETENCY of assignee, 338. 
 
 badge of fraud, 338. 
 
 ground of removal, 337. 
 INCONSISTENT DEFENSES, may be set up, 158. 
 INCORPOREAL RIGHT, membership of stock exchange is, 35. 
 INCUMBRANCES, purchaser removing, 126. 
 INDEFINITE TRUST, fraudulent, n. 
 INDIAN TERRITORY, statute of Elizabeth in, 16 n. 
 INDIANA, creditor's bill against absconding debtor, 84. 
 
 exceptional practice in, as to joinder of claims, 85. 
 
 its features considered, 85. 
 
 suit by general creditor, 73 ;/. 
 
 as to change of possession, 250. 
 
 as to spendthrift trusts, 3670. 
 INDICIA OF FRAUD, 224-244. 
 
 See Badges of Fraud. 
 
 are circumstances or elments of fraud, 224. 
 
 defined, 225, 225 //. 
 INDICTMENT, alleging fraudulent conveyance, when sufficient, 
 
 65 n. 
 INDIVIDUAL and copartnership debts, 216. 
 
 consideration as affecting, 216. 
 INDORSER as creditor, 90. 
 
 INDUSTRY AND TALENTS, cannot be reached, 50*7. 
 INFANT, fraudulent intent applied to, 199 n. 
 
 no participation in fraudulent intent, 199 n. 
 
 interest in parents' trust income, 45. 
 INFERENCE, of fraud from circumstances, 7. 
 
 of fraud, despite honest intent, 197. 
 
 how justified, 281. 
 INJUNCTION against debtor before judgment, not allowed, 52, 185. 
 
 theory of the rule, 52.
 
 7Q4 References^ INDEX. [are to sections. 
 
 INJUNCTION — continued. 
 
 exceptions to the rule, 53, 185. 
 
 vexation and hardship incident to any other rule, 52. 
 
 creditor must have certain claim, 52. 
 
 against debtor, 185, 186. 
 
 against sale, 185. 
 
 against encumbrancing stock, 185. 
 
 when allowed, 185. 
 
 when disallowed, 186. 
 
 not allowed to wife, when, 52. 
 
 in aid of attachement, 53, 185. 
 
 in cases of false credit and disaffirmance, 53. 
 INJURED PARTIES, only can assail fraudulent conveyances, 107. 
 INNOCENCE, presumed in actions for deceit, 5. 
 
 of assignee, does not save assignment, 319. 
 INNOCENT CONSTRUCTION, to be preferred, 20, 20 n. 
 INQUIRY, facts sufficient to excite, 379, 380. 
 
 facts that constitute notice of fraud, 380. 
 
 scope of, in this work, 3. 
 
 field of, broad, 6. 
 INSIGNIFICANT GIFTS, not avoided, 41. 
 INSOLVENCY, evidence of, 239, 273. 
 
 importance of proof of, 239. 
 
 as proof of fraud, 239. 
 
 considered a circumstance, 239. 
 
 seeking provisional relief, 184. 
 
 meaning of the term, 273. 
 
 opinions as to, 273. 
 
 of vendee, 274. 
 
 proof of, 271. 
 
 continuing business after, 143 n. 
 
 of debtor, evidence of, 273. 
 
 discharges as defense, 294. 
 
 rule as to, 294. 
 
 alleging in pleading, 143. 
 
 when must exist, 143. 
 
 defined, 143. 
 INSOLVENT, punished under early law, 1, 1 n. 
 
 proof that person is, 239. 
 
 station in life as regards income, 45. 
 INSOLVENT CORPORATION, capital stock of, 68 n, 117 
 
 evidence of insolvency, 273, 273 n. 
 See Corporation. 
 INSTRUMENT, fraud shown by separate, 6.
 
 References^ INDEX. [are to sections. 7QC 
 
 INSUFFICIENT CONSIDERATION, 223. 
 
 illustrations, 223, 232. 
 
 judgments, 77. 
 
 statement of confession, 174. 
 INSUFFICIENT, judgments, 77. 
 
 grounds to attack assignment, 345a. 
 INSURANCE, when not assignable, 23. 
 
 policies, rights of creditors, 23, 23 n, 312. 
 
 by married man, 23. 
 
 murder to secure, 20 //. 
 
 when not in fraud of creditors, 23 n. 
 
 annual premium limited, 23. 
 
 insurance money may be traced, 44. 
 IN PERSONAM, judgment to sustain supplementary proceedings, 61. 
 
 to uphold creditor's suit, 77. 
 
 primary jurisdiction of equity is, 60. 
 INTANGIBLE interests may be reached, 17, 27. 
 
 choses in action recoverable, 17, 24, t,^. 
 
 stocks, patent rights, legacies, 24, 37, 38. 
 INTEGRITY, paramount to generosity, 16. 
 INTENT, is an emotion, 8. 
 
 See Intention. 
 
 essential element, 196. 
 
 inferred from circumstances, 8. 
 
 fraudulent pleading, 145. 
 
 as a conclusion of law, 9, 10, 197, 322. 
 
 cases considered, 10. 
 
 evil, not evidence by gifts of small value, 41. 
 
 not conclusive, 197, 382. 
 
 determined by act done, 8 «, 196. 
 
 seldom disclosed on face of transaction, 196. 
 INTENTION, may oppose legal conclusion, 8, 382. 
 
 when cannot change presumption, 9. 
 
 seldom disclosed on face of transaction, 196. 
 
 reached by construction of instrument, 10, 322. 
 
 as affecting subsequent creditors, 98, 202. 
 
 generally, 8, 9, 10, 41, 196-206, 279^. 
 
 must be found as a fact, 196. 
 
 discrimination in decree, 196. 
 (1.) Defined or outlined, 196. 
 
 is an emotion or operation of the mind, 196. 
 
 shown by acts or declarations, 196. 
 
 fraud as affected by, 8, 9, 10, 196.
 
 yg6 References^ INDEX. [are to sections. 
 
 INTENTION — defined or outlined — continued. 
 
 debtor's statements not conclusive, 196, 197. 
 
 insolvent's standard of morality not the test, 196. 
 
 hinder, delay or defraud, sufficient, 11, 196. 
 
 when question of res adjudicata, 203. 
 
 question for the jury, 204. 
 
 testifying to, 205. 
 
 as to another person's intent, 205. 
 
 proving it, 206. 
 
 intent of debtor the test, 196, 196 n. 
 
 gathered from circumstances, 206. 
 (2.) Actual intent not decisive, 197. 
 
 fraudulent purpose may be implied, 8, 9, 10, 197. 
 
 debtor's belief immaterial, 8, 9, 10, 196, 197, 322, 382. 
 
 professions of good faith, 279^. 
 (3.) Fraud of agent binding on. principal, 198. 
 
 intent established by implication or substitution, 198. 
 (4.) Mutualitx of participation in fraudulent intent, 199, 207. 
 
 the general rule, 199. 
 
 vendor's intent insufficient, 199. 
 
 fraudulent intent as applied to infant, 199 n. 
 (5.) As affecting voluntary alienations, 200, 319. 
 
 the cases reviewed, 200 //. 
 
 differs from cases where consideration is present, 200. 
 
 not essential to show mutual evil intent, 200. 
 
 relating to general assignments, 319. 
 (6.) Where consideration is adequate, 201. 
 
 the rule considered, 201. 
 (7.) To defraud subsequent creditors, 96, 97, 98, 100, 202. 
 
 applications of the rule, 96, 97, 98, 100, 202. 
 
 creditor must show, 98. 
 
 future schemes of fraud, 202. 
 INTENTIONAL FRAUD, under bankrupt act, 13 n. 
 INTENTIONAL OMISSION of assets, avoids assignment, 345. 
 INTERESTED parties, in esse, must be joined, 107. 
 INTERESTS that may be reached, 23-50. 
 
 tangible interests, 24. 
 
 intangible rights, 17, 24, n, 37, 38. 
 
 rule in England, 25. 
 
 profits and inprovements, 26. 
 
 crops, 27. 
 
 choses in action, 33. 
 
 powers, 39, 40.
 
 References^ INDEX. [are to sections. 7Q7 
 
 INTERESTS — continued. 
 
 trust income, 45, 360. 
 INTERPRETATION and construction, 20, 20 n. 
 
 maxims of common law, 20 n. 
 
 of contracts, 268. 
 INTERVENTION, motion for in New York, 10S n. 
 
 creditor must not be guilty of laches, 109. 
 INTRODUCTORY observations, 1-22. 
 IRREGULARITIES, not proof of fraud, 5. 
 IRRESISTIBLE, evidence to establish fraud need not be, 7. 
 ISSUE OF FACT, referred to jury in equity, 51. 
 
 See Jury. 
 ITEMS, of evidence, jury to weigh, 281. 
 
 JOINDER OF CLAIMS, 54, 108. 
 
 rule in Ohio, 54. 
 
 uniting causes of action, 55, 108. 
 
 several grantees may be joined, 54. 
 
 although separate defenses exist, 54. 
 
 ejectment and equitable relief in one bill, 54. 
 
 conflict in the cases, 54. 
 
 exceptional practice in Indiana and North Carolina, 85. 
 
 for judgment on coupons and mandamus, 85 //. 
 JOINDER OF COMPLAINANTS, 108, 108 n. 
 
 creditors by distinct judgments, 108. 
 
 various illustrations, 108. 
 
 by judgment and decree, 108. 
 
 general theory, 108. 
 
 of hostile claimants, 108. 
 JOINING DEFENDANTS, the rule, 128, 132, 150, 151, 152. 
 
 the theory, 132. 
 
 objections to non-joinder, 134. 
 
 debtors, 128, 129. 
 
 stockholders, 128. 
 JUDGMENT-CREDITORS, may follow corporate assets, 119. 
 
 may attack fraudulent conveyance, 73-88. 
 
 See Status of Attacking Creditors. 
 
 may attack other judgments, 74. 
 
 when execution excused, 75. 
 JUDGMENT OR DECREE, rules as to, 168-183, 183^. 
 
 status of attacking creditors, 73-88. 
 
 lien and order of payment, 170, 170 ;/, 171. 
 
 collateral attack on, 270.
 
 7Q8 References'] INDEX. [are to sections. 
 
 JUDGMENT OR DECREE — continued. 
 
 confession, 270 n. 
 
 when judgment unnecessary, 83. 
 
 receiver before, 184. 
 
 on offer, valid, 76. 
 
 judgments sufficient, 76. 
 
 judgments insufficient, 77. 
 
 foreign judgment, 78. 
 
 when judgment unnecessary, 83, 83 ;/. 
 (1.) Judgment conclusive, 168, 169, 270, 286^. 
 
 attributes of the judgment, 168. 
 
 operates as an estoppel, 168. 
 
 conclusive, though form of action be changed, 169. 
 
 judgment transferring title, 172. 
 
 when not conclusive, 168. 
 (2.) Judgment appointing receiver, 170. 
 
 the pratice explained, 170. 
 
 appointing referee irregular, 170. 
 
 effect of, 170. 
 (3.) Judgment avoids sale only as to creditor, 171, 395-402. 
 
 the principle, 171, 395. 
 effect of action of chancery, 171. 
 (4. ) Impounding proceeds of fraudulent sale, 175. 
 
 accounting by fraudulent vendee to debtor, 176. 
 (5.) Relief at law and in equity, 176 n. 
 equity more flexible, 176 n. 
 enforcing judgment at law, 170^7. 
 (6.) Personal judgment against fraudulent vendee, 3 //, 177, 178. 
 the subject discussed, 177. 
 rule in various States, 3 n, 177, 178, 178 n. 
 allowances to vendee, 176. 
 money in place of land, 178 //. 
 money judgment, when disallowed, 179. 
 personal judgment against wife, 180. 
 ( 7 . ) Must conform to relief sought, 181, 182. 
 illustrations, 181, 182. 
 fraud must be found as stated, 168. 
 form in Louisiana, 171. 
 (8. ) Generally. 
 
 no judgment in favor of unrepresented parties, 173. 
 enforcing judgment at law, 170a. 
 confession of judgment, 174. 
 contradictory verdicts, 183.
 
 References^ INDEX. \ are to sections . 799 
 
 JUDGMENT OR DECREE— generally — continued. 
 
 status of attacking creditors, 73-88. 
 
 attaches to proceeds of power, 40 //. 
 
 as to trust, when binding on creditors, 45 n. 
 
 when fraudulent, removed, 5 1 n. 
 
 equity will restrain when demand fictitious, 74 //. 
 
 creditor attacking, burden as to, 74. 
 
 in supplementary proceedings, 77. 
 
 cestui que trust need not have, 127a. 
 
 statutory new trial, 1830. 
 
 case retained till disposed of, 168. 
 JUDGMENT, FOR DAMAGES, improper in equity, 51. 
 
 must be for accounting by fraudulent vendee, 51. 
 
 fraudulent confessions of, attacked in one suit, 54. 
 
 creditor must have, before filing bill, 71-88. 
 
 conclusive as to indebtedness, 74, 270. 
 
 proof of, 270. 
 
 attacking for collusion, 74 //. 
 
 sufficient to sustain a bill, 76, So. 
 
 insufficient for that purpose, 77. 
 
 foreign, effect of, 78. 
 
 foreign, not sufficient, 78. 
 
 object of, 73. 
 
 establishes debt, 73. 
 
 exhausts legal remedy, 73. 
 
 lien by statute, 87. 
 JUDICIAL SALE, change of possession on, 265. 
 
 not necessary in Pennsylvania, 265. 
 
 considered essential in New York, 265. 
 JURISDICTION IN EQUITY, when exclusive, 56. 
 
 when property not subject to execution, 36. 
 
 limited in Massachusetts to property not subject to execu- 
 tion or attachment, 59 n. 
 
 united jurisdictions, effect of, 51. 
 JURISDICTIONAL QUESTIONS, 405-407- 
 
 beyond State boundaries, 405. 
 
 outside county, 406. 
 
 appeal to Supreme Court, 407. 
 JURY, issues of fact referred to in equity, 51. 
 
 framing issues, 51, 51 //. 
 
 to weigh items of testimony, 281. 
 
 to weigh declarations, 276.
 
 800 References] INDEX. yare to sections. 
 
 JURY — continued. 
 
 consider badges of fraud, 228. 
 
 intent, questions for, 9, 204. 
 
 fraud on subsequent creditors, question for, 97, 97 //. 
 
 court cannot interfere, 204. 
 
 in conclusive cases verdict ordered, 204. 
 
 rule in New York as to, 204. 
 
 effect of badges of fraud submitted to, 226. 
 
 continued possession as evidence of fraud, question for, 254. 
 
 error by, how corrected, 254. 
 
 KANSAS, change of possession, 250. 
 KENTUCKY, rule as to absconding debtors, 84. 
 
 as to land bought with pension money, 46. 
 
 rule as to trust income, 367^. 
 
 as to change of possession, 251. 
 KNOWLEDGE, of facts sufficient to excite inquiry, 379, 380, 381. 
 
 See Notice. 
 
 of facts, as notice of fraud, 379-381. 
 
 buying with guilty knowledge, 380. 
 
 LABOR, debtor may give away, 50^. 
 
 debtor may bestow on wife, 50^. 
 
 preference for claim for, 341^. 
 LACHES, excusing apparent, 148. 
 
 not imputed by iron rule, 287. 
 
 circumstances govern each case, 287. 
 
 pleading as to, 148, 149. 
 
 as a defense, 287. 
 
 stale demands discouraged, 287. 
 
 lapse of time, 288, 289. 
 
 effect of, 287-289. 
 
 creditor applying to intervene, 109. 
 LAND, change of possession of, 264. 
 
 as distinguished from personalty, 264, 264 n. 
 
 possession evidence of ownership, 264. 
 
 purchased in name of third party, 57. 
 
 in name of third party, trust as to, 57 ;/. 
 LAPSE OF TIME, as a defense, 288, 289. 
 
 rests not alone on laches, 288. 
 
 peace of society, 288. 
 
 loss of witnesses, 288, 289. 
 LATITUDE ALLOWED, in proving circumstances, 281.
 
 References^ INDEX. [are to sections. $0 I 
 
 LATITUDE ALLOWED — continued. 
 
 in cross-examination, 281. 
 LAW, purchase either valid or void at, 51. 
 
 no reimbursement at law, 193. 
 
 remedy at, 59. 
 
 creditor may proceed by execution at, 59. 
 
 attempted transfer treated as nullity, 59. 
 
 and equity, distintion observed between, 51. 
 LAWRENCE v. FOX, rule in, applied, 43. 
 LEASE, liability on, creditor, 90. 
 LEGACIES, recovered by creditors, 24. 
 LEGAL AND EQUITABLE JURISDICTION, 4, 51, 59, 60. 
 
 changes in modern procedure, 51. 
 
 who responsible for decision in equity, 51. 
 
 judgment for damages not allowed in equity, 51. 
 
 reimbursement in equity, 192. 
 
 equity more flexible than law, 60. 
 LEGAL FRAUD, meaning of, 51. 
 LEGAL PRESUMPTIONS, 7. 
 
 Judge Black's views, 7. 
 LEGATEE, cannot avoid testator's transfer, 121 //. 
 LEGISLATION, tendency of, to protect honest debtors from pun- 
 ishment, 1 //. 
 
 to enlarge remedies against property, 3. 
 
 may exempt all property, 46 n. 
 
 as to creditors of decedent, 79. 
 LEVY, when excused, 75, 83. 
 
 cannot be made against receiver, 83. 
 LEX FORI, governs remedy, 64. 
 
 cases and illustrations, 64. 
 
 governs right to arrest, 64, 191. 
 
 matters of procedure, regulated by, 64. 
 LEX NEMINEM COGIT AD VANA SEU INUTILIA PERA- 
 GENDA, 73. 
 
 struggle for application of maxim, 73. 
 LIBEL, claimant for damages from, is creditor, 90. 
 LIEN, in supplementary proceedings, 61. 
 
 See Status of Attacking Creditors. 
 
 creditors must have, to file bill, 73, 75, 76, 88. 
 
 created by creditor's bill, 68, 75, 392. 
 
 by attachment, not sufficient to support bill, 81, 81 n. 
 
 creditors having rights of," 125. 
 
 parties having, as defendants, 138. 
 51
 
 802 References] INDEX. [are to sections. 
 
 LIEN — continued. 
 
 judgment sufficient, 76, 80. 
 
 judgment insufficient, 77, 78, 81. 
 
 when unnecessary, 83. 
 
 upon rents and profits, 26. 
 
 judgment by statute, 87. 
 
 order of payment, 170, 171. 
 LIFE INSURANCE, policies, may be reached, 23, 24. 
 
 when non-assignable, 23. 
 
 by married man, 23. 
 
 murder to secure, 20 ;/. 
 LIGHTLY IMPUTED, fraud is not, 5. 
 LIMITATIONS upon ownership not favored, 360-368. 
 
 inconsistent, are void, 362. 
 
 statute of, 292. 
 
 in equity, 293. 
 
 effects of discovery of fraud, 290, 291. 
 
 must be pleaded or raised, 202. 
 
 acknowledgment of debt, 215. 
 
 judgment barred by, 77. 
 
 rule in New York, 73. 
 LIMITED partnership, cannot assign with preference, 319^. 
 LIS PENDENS, rule as to, 157. 
 
 to create, must describe property, 157. 
 
 doctrine as to, very ancient, 157. 
 
 not applicable to bonds, 157. 
 
 or to negotiable securities, 157. 
 
 or personal property, 157. 
 LITIGATION engendered by fraudulent transfers, 2. 
 
 not creditable, 407. 
 LOCAL, penal statutes are, 139. 
 
 territorial jurisdiction, 1570. 
 LOCAL RULE, governs federal courts, 20. 
 LOGS, delivery of, 262. 
 
 symbolical delivery sufficient, 262. 
 
 illustrations, 262. 
 LONG CREDIT, sale on, 240. 
 LOUISIANA, doctrine as to collateral attacks, 69. 
 
 its features discussed, 69. 
 
 derived from civil law, 69. 
 
 not generally acknowledged, 69. 
 
 objections to rule, 69. 
 
 form of judgment, 171.
 
 References] INDEX. [are to sections. 80" 
 
 LOUISIANA — continued. 
 
 as to change of possession, 250. 
 LOVE AND AFFECTION as consideration, 210. 
 
 good between brother and sister, 216. 
 
 not good against existing creditors, 210. 
 
 explaining recitals in deed as to, 221. 
 
 MAINE, suit by general creditor, 73;;. 
 
 spendthrift trusts, 367*7. 
 MAINE'S ANCIENT LAW, punishment of debtors, 1 n. 
 MALICIOUS PROSECUTION, claims for, cannot be reached, 34. 
 
 do not pass by assignment, 34. 
 MANIFEST, fraud must be made, 5. 
 MARRIAGE, as consideration, 212. 
 
 the rule in the cases, 212. 
 
 public policy as to, 212. 
 
 relationship, 298. 
 
 settlement, rule as to, 306. 
 
 post-nuptial settlement, 307. 
 
 fraudulent conveyances in contemplation of, 314. 
 
 settlement, description in, 157 n. 
 
 statute of frauds, 311. 
 MARRIED MAN, may devote earnings to life insurance, 23. 
 
 See Agent. 
 MARRIED WOMEN, rights of, 298. 
 
 claiming life insurance, 23. 
 
 assignments of policies by, 23. 
 
 See Husband and Wife. 
 MARSHALL, Chief-Justice, views of, as to moral turpitude, 8. 
 MARSHALLING assets, 216. 
 MARYLAND, change of possession, 251. 
 
 spendthrift trusts in, 367*7. 
 MASS, of property, charge upon in equity, 44, 44 ;/. 
 MASSACHUSETTS, rule as to spendthrift trusts, 367, 367*7. 
 
 rule as to crops on lands fraudulently conveyed, 27. 
 
 jurisdiction of equity in, 49 //. 
 
 choses in action reached, 64. 
 
 remedies allowed, 65. 
 
 when receiver not appointed, 188 //. 
 
 no reconveyance, 397. 
 
 knowledge of intent, 196. 
 
 promises of third parties, 43. 
 MATERIAL FACTS, must be alleged in complaint, 141.
 
 SOA References} INDEX. yare to sections. 
 
 MAXIMS, of common law, control laws and contracts, 20 //. 
 MEMBER, suing in place of receiver, 73. 
 MEMBERSHIP of stock exchange is assets, 35. 
 
 not liable to execution, 35 ;;. 
 MENTAL OPERATION and legal conclusion opposed, 8. 
 
 illustrated in Coleman v. Burr, 382. 
 
 intent is, 196. 
 MESNE PROFITS recoverable, 26. 
 
 during period of redemption, 26. 
 
 when property is held under trust, 26. 
 METHODS of obtaining redress, 72. 
 
 annulling fraudulent deed, 72. 
 
 appointing referee or receiver, 72. 
 
 selling on execution, 72. 
 MICHIGAN, change of possession, 250. 
 MINGLED property, 28. 
 
 rule as to, 28. 
 
 of husband and wife, 305. 
 
 wife may lose it, 305. 
 
 conflicting views, 305. 
 
 rule in bankruptcy, 305 //. 
 MINNESOTA, proof of existing debt, 89 n. 
 
 suit by receiver in insolvency, 115. 
 
 dishonest design must be shown, 197. 
 
 change of possession, 250. 
 MISJOINDER of causes of action, 135. 
 
 hostile claimants cannot join, 108. 
 MISSISSIPPI, general creditor may sue, 73 n. 
 
 debt must be due, 107 n. 
 
 exemptions in, 365. 
 
 trust income cases, 3670. 
 MISSOURI, issuance of attachment in, 12. 
 
 creditor's bill against absconding debtor, 84. 
 
 trust income cases, 367^. 
 
 conveyance by embarrassed debtor, 99. 
 
 change of possession, 251. 
 MISTAKE, in fraudulent conveyance, not corrected, 396. 
 
 in assignment, not fatal, 321. 
 MIXED CLAIMS, prior and subsequent to alienation, 105. 
 MODERN CHANGES in the law, 1. 
 MONEY EARNED, but not due, available, 33. 
 MONEY JUDGMENT, when disallowed, 179. 
 
 alllowed against vendee, 177, 178.
 
 References] INDEX. [are to sections. 805 
 
 MONEY JUDGMENT — continued. 
 
 in equity, 51. 
 MONEY, may be reached, 24. 
 
 consideration need not be in, 207. 
 MONOPOLY, which patent confers, is property, 38. 
 MORAL SENSE, weak in some men, 8, 382. 
 
 of debtor, not binding on creditor, 8. 
 MORAL TURPITUDE, proof of, 8, 382. 
 
 not exacted, 8. 
 
 under bankrupt act, 13 n. 
 
 obligations as to consideration, 215. 
 
 duty to pay debt barred by statute, 215. 
 
 obligation, statute of frauds, 215. 
 MORTGAGEE as bona fide purchaser, 371. 
 
 rule in New York, 371. . 
 MORTGAGES, 347-359- 
 
 See Chattel Mortgages. 
 
 when fraudulent, 347-359. 
 
 promise not to disclose existence of, 281. 
 
 for just debt, may be overthrown, 207. 
 
 absolute conveyance as security, 238, 404. 
 
 pre-existing indebtedness as consideration, 371. 
 
 declaring deeds to be, 404. 
 
 future advances should be shown on mortgage, 217. 
 
 redeeming from, 404a. 
 
 assignee may set aside, 115. 
 MOTHER, and son, transactions between, 242. 
 MOTION, uncertainty in pleading reached by, 14° «• 
 MOTIVES, often unimportant, 8, 382. 
 
 not controlling, 187. 
 
 of transactions, 7. 
 
 latitude on question of, 224 n. 
 
 testifying to, 205, 205 //. 
 MULTIFARIOUS complaints, 150, 151, 152. 
 
 complaints bad for, 150. 
 
 pleadings held not to be, 151, 152. 
 
 rules applicable to, 150-152. 
 MUNICIPAL CORPORATION as creditor, 90. 
 
 from date of tax warrant, 90. 
 MURDER, not presumed, 5 n. 
 
 to secure proceeds of insurance, no recovery, 20 n. 
 MUTUALITY of participation in fraudulent intent, 199, 302, 319. 
 
 vendor's intent alone sufficient, 199.
 
 806 References] INDEX. [are to sections. 
 
 MUTUALITY — continued. 
 
 participation by infant, 199 n. 
 
 as to voluntary alienations, 200, 200 n. 
 
 Laughton v. Harden, 200 ;/. 
 
 NATIONAL BANK, receiver of, 117. 
 
 not dissolved by receivership, 134. 
 NATURAL, presumptions, 7. 
 
 Judge Black's views, 7. 
 
 consequence of an act, presumption as to, 9, 10, 382. 
 
 person, corporation like, 117 n. 
 NEBRASKA, change of possession, 250. 
 
 NEGOTIABLE INSTRUMENTS, lis pendens doctrine not applica- 
 ble, 157. 
 NEVADA, change of possession, 250. 
 NEW ENGLAND cases as to change of possession, 249. 
 
 transfers presumptively fraudulent, 249. 
 NEW APPOINTMENT of assignee made by court, 316. 
 NEW JERSEY, bill by creditor having lien, 81 n. 
 
 spendthrift trusts, 367c. 
 
 bill by receiver, 116. 
 
 receiver of jewelry, 188. 
 NEW TRIAL, not a matter of right, 183a. 
 NEW VENTURES, placing property beyond, 100. 
 NEW YORK, value as affecting right to bring bill, 23 n. 
 
 and Massachusetts, choses in action may be reached, 64. 
 
 creditor's bill and supplementary proceedings at the same 
 time, 65. 
 
 no receiver in ejectment, 187. 
 
 rule as to change of possession, 250. 
 
 declarations as to personalty, 277. 
 
 sales by mortgagor for mortgagee valid, 355. 
 
 pension money in land, exempt, 46. 
 
 judgment by creditors of decedent, 79. 
 
 statutory policy, 79. 
 
 supplementary proceedings are special proceedings, 61. 
 
 assignee must attack fraudulent conveyance, 115. 
 
 title of receiver to real property, 116. 
 
 specific assignment not a general assignment, 339. 
 
 rule as to limitations, 73. 
 
 personal representative must sue, 77, 77 n. 
 
 suit in aid of attachment, 81, 81 n. 
 
 rule as to voluntary conveyances, 93, 208.
 
 References] INDEX. \jire to sections. §07 
 
 NEW YORK — continued. 
 
 fraud on subsequent creditors, ioo u. 
 
 intervention motion, 108 u. 
 
 executors may sue, 112. 
 
 rule as to discovery of fraud, 149. 
 
 rule as to lis pendens, 157. 
 
 spendthrift trusts, 367a, 367^. 
 NICHOLS v. EATON, the point actually decided, 364. 
 
 the case stated, 364. 
 
 the dictum, 365. 
 
 criticised, 365. 
 
 the true rule, 366. 
 
 re-stated, 361 //. 
 NON-ATTENDANCE, of defendant, 241, 241 n. 
 NON-FILING of deed, 234 n, 235. 
 NON-RESIDENT DEBTOR, jurisdiction over, 84. 
 NO REIMBURSEMENT at law, 193. 
 NO DEFINITION of fraud, 13. 
 NORTH CAROLINA, exceptional practice as to joinder of claims, 85. 
 
 the practice deprecated, 85. 
 
 spendthrift trusts, 367a. 
 
 inadequacy of consideration, 232. 
 NOTICE, actual and constructive, 372-389. 
 ( 1 . ) Wit ho u t notice, 372. 
 
 Judge Story's rule, 372. 
 
 possession as notice, 384a. 
 
 creditors after notice, 106. 
 ( 2 . ) Kinds of notice, 373. 
 
 two kinds, actual and constructive, 373. 
 
 both defined, 373. 
 (3.) Constructive notice of fraud, 374-376, 378-382. 
 
 various definitions, 374. 
 
 rule in Stearns v. Gage, 375. 
 
 the doctrine discussed, 375, 376. 
 
 rule in Anderson v. Blood, 376a. 
 
 illustrations, 376. 
 
 actual belief, 377, 382. 
 
 rule in Parker v. Conner, 378. 
 
 comments, 382. 
 (4.) Facts sufficient to excite inquiry, 379-381. 
 
 many illustrations, 379-381. 
 
 means of knowledge equivalent to knowledge, 381. 
 
 notice to preferred creditors, 341^.
 
 References^ INDEX. \ are to sections. 
 
 NOTICE — facts sufficient to excite inquiry — continued. 
 
 purchaser pendente lite, 389a. 
 NOTORIETY of change of possession, 253. 
 
 symbolical delivery insufficient, 253. 
 NULLA BONA, execution returned, 86/87, 87 //. 
 NULLITIES, attempted transfers treated as, 59, 69. 
 
 OATH against oath, effect of, 159. 
 OBJECTIONS, as to non-joinder, how raised, 134. 
 
 to jurisdiction in equity, 88, 88 n. 
 OBSTACLES to development of the law, 5. 
 OFFER, judgment entered on valid, 76, 270. 
 
 judgment on, 270. 
 
 of reimbursement, 192. 
 OHIO, rule as to change of possession, 250. 
 
 as to spendthrift trusts, 367a. 
 OMISSION from schedules, when fraudulent, 320. 
 OMNIA PRAESUMUNTUR CONTRA SPOLIATOREM, 281. 
 OMNIBUS BILL, creditors' bill so called, 68. 
 ONUS, as to fraud, 5, 6, 224. 
 
 affecting marriage relationship, 300. 
 OPEN AND CONCLUDE, right to, 271, 271 n. 
 OPINION, evidence as to insolvency, 273, 273 n. 
 
 as to value, 284. 
 
 of the parties, accorded little weight, 8. 
 ORDER OF ARREST, when vacated, 191. 
 OTHER CONVEYANCES, evidence of, 382. 
 OTHER FRAUDS, as evidence, 282. 
 " OTHERS," meaning of, no. 
 
 who included in, no. 
 
 suing on behalf of, no. 
 
 design of the statute as to, no. 
 OVERCOMING presumption from failure to change possession, 255. 
 OVERSEER OF POOR, as claimant, 124. 
 
 PAINSTAKING formalities, badge of fraud, 241. 
 PARENT AND CHILD, daughter's services to father, 218 
 
 no implied promise to pay, 218. 
 PAROL EVIDENCE, to vary consideration, 221. 
 PARTICEPS CRIMINIS, no relief to, 192, 214. 
 PARTICULARITY of denial in answer, 162. 
 
 general answer operates against defendants, 162. 
 PARTICULARS, bill of, ordering, 162a.
 
 References^ INDEX. [are to sections. SOO 
 
 PARTIES COMPLAINANT, 68, 73j 107-127. 
 See Complainants. 
 
 joinder of complainants, 108. 
 
 when heirs cannot sue, 121. 
 
 when widow not entitled to proceed, 121. 
 PARTIES DEFENDANT, 128, 129. 
 
 See Defendant. 
 
 joinder of defendants, 132, 133. 
 
 in forfeiture action, 132^, 
 
 question of, perplexing, 107. 
 
 competency of, as witnesses, 269. 
 
 cross-examination of, 281. 
 
 interested parties in esse must be joined, 107. 
 PARTY, as witness, 269. 
 
 competency of, 269. 
 PARTITION SUIT, mortgage assailed as fraudulent, 63. 
 
 the theory, 63. 
 PARTNERS, may sue copartners and fraudulent alienees, 54. 
 
 object of suit in such case, 54. 
 
 arrest of, 191. 
 
 preferring claims, 329. 
 
 no exemptions, 48. 
 
 special, cannot be preferred, 329. 
 
 survivor may make assignment, 329. 
 
 limited, assets are trust fund, 329. 
 
 corporators, when liable as, 139. 
 
 copartnership and individual debts, 216. 
 
 frauds on partnership creditors, 216. 
 
 partnership assignments, 319^. 
 
 power of to make assignments, 319^. 
 PAST TRANSACTIONS, declarations as to, 276. 
 PATENT RIGHTS, monopoly secured by, is property, 38. 
 
 may be assigned by operation of law, ^8. 
 
 can be reached by creditors, 24, 38. 
 
 inchoate right to, non-assignable, 38. 
 
 receiver of, 38. 
 PAYMENTS, made to debtor, 50^. 
 PENALTY for non-payment of debts, 1. 
 
 inflicted upon stockholders, 139. 
 PENDENTE LITE, purchaser, 389a, 392. 
 PENDING the writ or suit, conveyance made, 22, 132a. 
 
 badge of fraud, 233. 
 
 purchaser bound, 1320.
 
 8 10 References^ INDEX. [are to sections. 
 
 PENNSYLVANIA, rights of administrators, 112. 
 
 change of possession, 251. 
 
 spendthrift trusts, 367^, 368. 
 
 powers not assets, 368a. 
 PENSION MONEY, in lands, 46. 
 
 PER SE FRAUDULENT, inadequacy of price is not, 232. 
 PERSONAL, judgment against fraudulent vendee, 177, 178, 178 n. 
 
 money judgment, when disallowed, 179. 
 
 against wife, 180. 
 
 to sustain bill, 77. 
 
 transaction with deceased, testifying to, 122. 
 PERSONAL liability, assignee protected against, 319a. 
 PERSONAL PROPERTY, mortgages upon, 347-359. 
 
 delivery of possession of, 245-267. 
 
 distinction between, and realty, 264. 
 
 as to return of execution, 87. 
 
 lis pendens inapplicable to, 157. 
 PERSONAL REPRESENTATIVES, as complainants, 112, 113. 
 
 rule in New York, 112, 113. 
 
 as defendants, 136. 
 
 conveyances binding upon, 112, 113, 398. 
 
 may sue for cancelled debt, 42. 
 
 claims of, pass by assignment, 316^. 
 PERSONAL TRANSACTIONS with deceased person, 121. 
 
 evidence of, 121, 205 n. 
 PERSONALTY, restraint upon, not allowed, 363 n. 
 
 in name of third party, liable to seizure, 57. 
 
 admissions concerning title to, excluded, 277. 
 PLAINTIFFS, in creditors' suits, 68, 73, 107-127. 
 
 See Complainants. 
 PERSUASIVE, proof of fraud must be, 5. 
 PLEA, or answer, 158-167. 
 
 See Answer. 
 
 of bona fide purchaser, 163. 
 
 PLEADING, 141-167. 
 
 See Complaint. 
 testimony must conform to, 285. 
 amendment of, 156. 
 bill of particulars, 162a. 
 charging fraud, 141. 
 general allegations insufficient, 141.
 
 References] INDEX. [are to sections. 3jj 
 
 PLEADINGS IN EQUITY, not so strict as at law, 60, 146. 
 
 held not multifarious, 151, 152. 
 PLEDGE, void mortgage not basis of, 357. 
 PLEONASMS, in English statutes, 11 ;/. 
 POLICIES of insurance for wife's benefit, 23, 312. 
 
 when not assignable, 23. 
 POSITIVE TESTIMONY, not requisite, 5. 
 POSSESSION, change of, 245-267. 
 
 See Change of Possession. 
 
 must be open and visible, 246, 253. 
 
 definition of, 245. 
 
 evidence of title, 245. 
 
 concerning possession, 245. 
 
 possession as proof of fraud, 247. 
 
 rebutting inference, 250. 
 
 transfers prima facie fraudulent, 248. 
 
 as evidence of fraud per se, 251. 
 
 rule in different states, 250, 251. 
 
 rule in federal tribunals, 250. 
 
 between husband and wife, 253. 
 
 replenishing stock, 253. 
 
 separating stock, 253. 
 
 overcoming presumption, 255. 
 
 result of the cases, 252. 
 
 change of, must be continuous, 257. 
 
 temporary resumption of, 258. 
 
 concurrent, 259. 
 
 excusing want of change of possession, 261, 263. 
 
 change of possession of realty, 265. 
 
 possession with power of sale, 267. 
 
 after conveyance, 279. 
 
 declarations characterizing, 277-279. 
 
 by wife, presumption of ownership, 30 r. 
 POSSIBILITY of judgment will not sustain bill, 73. 
 POST-NUPTIAL marriage settlement, 307, 308. 
 See Husband and Wife. 
 
 upheld, if reasonable, 307. 
 
 presumed to be voluntary, 307. 
 POWER OF ATTORNEY, from wife to husband, 198. 
 POWER OF SALE, by mortgagor in mortgages, 347-359- 
 
 policy of the law considered, 347-359- 
 POWER, to reform assignment, 322^. 
 POWERS, when assets for creditors, 39, 39 >i, 40.
 
 8 12 References] INDEX. fare to sections. 
 
 POWERS — continued. 
 
 English rule as to, 39, 39 //. 
 
 rule in Supreme Court, 39 //. 
 
 views of Hardwicke and Somers, 39. 
 
 rule the same both as to realty and personalty, 39. 
 
 cannot be transferred, 39 ti. ' 
 
 statutory changes as to, 40. 
 
 judgment attaches to proceeds of, 40 n. 
 
 Pennsylvania rule, 368a. 
 
 New York policy as to, deplored, 40, 368^. 
 
 of alienation, restraints upon, 360-368. 
 PRACTICE, 71. 
 
 See Complaint; Answer; Complainants; Defendants. 
 
 in federal courts, 71. 
 
 equity practice prevails, 71. 
 
 following State rules, 71. 
 PRAYER OF COMPLAINT, 155. 
 
 mistake as to, not fatal, 155, 181. 
 
 inapt and incongruous prayers, 155. 
 PREFERENCE, IS LEGAL, 390, 391. 
 
 must represent actual debt, 391. 
 
 excessive, 341a. 
 
 to laborers, 341^. 
 
 notice to preferred creditors, 341^. 
 
 on eve of general assignment, 39 1#. 
 
 illegal composition, 3930. 
 
 attaching creditor, "3940. 
 
 of vigilant creditors, 392. 
 
 why rewarded, 392. 
 
 of claim in which assignor is partner, 329. 
 
 of special partner, disallowed, 329. 
 
 assignments to prevent, 341. 
 
 purpose of bankrupt act to defeat, 390 n. 
 
 theory of, 390. 
 
 secret, when avoided, 393, 394. 
 
 for wages, 392a. 
 
 by supplementary proceedings, 61. 
 
 when upheld, 11. 
 
 by agreement with corporation, 185. 
 PRE-EXISTING debt, as consideration, 209. 
 PREMIUMS, suit to recover, proofs, 23 n. 
 
 PRESUMPTION, that natural consequence of an act was con- 
 templated, 9, 10, 382.
 
 References^ INDEX. [are to sections . Si; 
 
 PRESUMPTION — continued. 
 
 does not obtain that common law prevails in Russia, (.4 «. 
 
 against fraud, 5-7. 
 
 ride as to, 7. 
 
 of good faith, 5, 6. 
 
 of innocence, 5. 
 
 of fraud in equity, 60. 
 
 that assignee represents creditors, 1 \$. 
 PRESUMPTIONS, legal and natural, 7. 
 
 PRESUMPTIVELY FRAUDULENT, conveyances, 94, 248. 
 PRETENDED CREDITOR has no status, 91. 
 PREVALENCE of fraudulent transfers, 2. 
 
 the cause, 2. 
 PRIMA FACIE, cases of fraud, 243. 
 
 numerous illustrations, 243. 
 
 evidence of fraud, 247, 248. 
 
 true, answer, 159. 
 
 failure to change possession, 248, 250, 252. 
 PRIMARY JURISDICTION, in equity, 60. 
 PRINCIPAL, knowledge sufficient to charge, 198. 
 PROCEDURE in federal courts, 71. 
 
 at law and in equity, 51, 59, 60. 
 PROCESS, service of, creates lien, 61, 68, 392. 
 PROCRUSTEAN FORMULA, statutes not limited by, 22. 
 PRODUCTS, of land, may be reached, 24. 
 PROFESSIONS, of good faith, 279^. 
 PROFITS, devise of, is devise of lands, 262. 
 
 debtor cannot give away, 26. 
 PROMISES, of third parties available, 43. 
 
 doctrine of Lawrence v. Fox, 43. 
 
 the rule not universal, 43. 
 
 not recognized in Massachusetts, 43. 
 
 nor in England, 43. 
 
 theory of the rule, 43. 
 
 avoids circuity of action, 43. 
 PROMISSORY NOTES, may be reached, 24. 
 PROOF of moral turpitude, 8, 382. 
 
 not essential to avoid transfer, 8. 
 
 intent to defraud subsequent creditors, 98. 
 
 judgment or lien, 270. 
 
 of consideration, 209, 222. 
 
 mutuality of intent, 199. 
 
 See Intention — Evidence.
 
 5 1 A References'} INDEX. [are to sections . 
 
 PROPER AND NECESSARY PARTIES, 68 n. 
 
 See Parties. 
 PROPERTY, susceptible of fraudulent alienation, 23-50. 
 
 the rule, 24, 25. 
 
 in name of third party, 57, 82. 
 
 of debtor, theory as to, n. 
 
 subject to immediate process, n. 
 
 value of, affecting question of fraud, 23, 41. 
 
 proving value of, 284. 
 
 substituted or mingled, 28. 
 
 of equitable character, 68 //. 
 
 stock exchange seat is, 35, 35 //. 
 
 trade mark, 36. 
 
 book royalty, 37. 
 
 patent right, ^&. 
 
 powers, 39, 40. 
 
 insurance, 23. 
 
 exempt property, 46, 49. 
 
 property not reached, 50^. 
 PROTECTION OF CREDITORS is the policy of the law, 1. 
 PROVING intent, 206. 
 
 circumstances, 281. 
 
 consideration, 219. 
 
 recitals as evidence, 220. 
 
 explaining recitals, 221. 
 
 value, 284. 
 PROVISIONAL RELIEF, injunction, receiver, arrest, 184-191, 
 (1.) Importance of prompt relief , 184. 
 
 forms of relief, 184. 
 (2.) Injunction as form of, 185, 186. 
 
 when allowed, 184, 185. 
 
 misconduct and insolvency, 184. 
 
 when disallowed, 186. 
 
 when issued against sale, 185. 
 
 against incumbrancing shares, 185. 
 (3.) Receiver in contest over real property, 187. 
 
 disinclination of the courts to appoint, 187. 
 
 why provisional relief is discouraged, 187. 
 
 no receiver in ejectment in New York, 187. 
 (4.) Receiver to collect alimony, 188. 
 
 practice in Wisconsin, 188. 
 
 may attack fraudulent transfers, 188. 
 (5.) Of various interests, 188.
 
 References] INDEX. [are to sections. gjC 
 
 PROVISIONAL RELIEF — of various interests — continual. 
 
 allowed only in clear cases, 188. 
 
 to sell land, 188. 
 
 of stock exchange, 188. 
 
 removal of, 190. 
 
 title in death, 189. 
 (6.) Arrest of defendant, 191. 
 
 actual intent to defraud necessary, 191. 
 PUBLIC, fraud upon, not avoid conveyance, 107. 
 PUNISHMENT, power to inflict, abrogated, 2, 3, 3 n, 178. 
 PURCHASE PRICE, inadequacy of, 232. 
 
 offer to restore, 192. 
 PURCHASER, removing incumbrances, 126. 
 
 recovering in ejectment, 57. 
 
 bona fide, 369. 
 
 notice to, 369-389*2. 
 
 with notice from bona fide purchaser, 384. 
 
 mortgagee as, 371. 
 
 of chattel mortgage, 168. 
 
 subrogation to creditor's lien, 195. 
 
 at execution sale may attack deed, 37 ia. 
 
 pending suit, 389^7, 392. 
 
 See Notice; Bona Fide Purchaser. 
 PURPOSE of the inquiry, 3. 
 
 QUASI, public officer, assignee is, 316. 
 QUESTION FOR COURT, fraud in law, 9, 10, 382. 
 
 of equity, 51. 
 QUESTION FOR JURY, intent, 9, 204. 
 
 effect of badges of fraud, 226. 
 
 to weigh declarations, 276. 
 
 as to change of possession, 254. 
 QUI H^ERET IN L1TERA H^RET IN CORTICE, 20 n. 
 QUIA TIMET, bills, when maintainable, 59. 
 
 RATIFICATION, of assignment, 3.6 n. 
 of judgment and execution, 174. 
 REACHED, property that cannot be, 50, 50^7. 
 REAL PROPERTY, receiver of, 187. 
 
 change of possession of, 264. 
 
 possession evidence of title, 264. 
 
 the cases considered, 264. 
 
 land in foreign state, 15 ,a.
 
 3 1 6 References] INDEX. [are to sections. 
 
 REAL PROPERTY — continued. 
 
 change of venue, 157*7. 
 
 receivers, title to, 116 //. 
 
 situs of, governs, 24. 
 REALTY AND PERSONALTY, declarations, 277. 
 
 as to issuance of execution, 87. 
 REASONABLE TIME, possession within, 256. 
 RECAPITULATION of creditors' remedies, 72. 
 RECEIVER, has no title to tort claims, 34. 
 
 when cannot represent creditor, 117. 
 
 no claim to exemptions, 46. 
 
 in supplementary proceedings, 61, 116. 
 
 as complainant, 116, 188. 
 
 bill by, 116. 
 
 power to appoint over national bank, 117. 
 
 recognition of, by comity, 118. 
 
 appointed before answer, 184. 
 
 when denied, 184. 
 
 directing transfer to, 187. 
 
 of various interests, 188. 
 
 only allowed in clear cases, 188. 
 
 of annuity, 188. 
 
 to sell and convey land, 188. 
 
 of a living, 188. 
 
 of a patent, 38. 
 
 of a stock exchange seat, 188. 
 
 in action to foreclose contract, 187 /;. 
 
 represents creditors, 116. 
 
 may disaffirm dealings of debtor, 116. 
 
 appointed for benefit of all parties, 188. 
 
 of corporation, rights of, 117. 
 
 when insolvency not ground for, 239 //. 
 
 judgment appointing, 170. 
 
 in contests over real property, 1S7. 
 
 title of, 117, 117 //. 
 
 title to realty, 116 //. 
 
 to collect alimony, 188. 
 
 of jewelry, 188. 
 
 title on death of, 189. 
 
 removal of receiver, 190. 
 
 entitled to notice, 190. 
 
 employment of debtor not ground of removal, 190.
 
 References], INDEX. \are to sections. 8l7 
 
 RECEIVER — continued. 
 
 foreign, has no status, 118. 
 
 summary process not extended to, 116. 
 
 as defendant, 133. 
 
 reaching fund in hands of, 44. 
 
 when stockholder may sue, 73. 
 
 federal court not disturb State receiver, 117. 
 
 suing in place of, 73. 
 RECITALS, of consideration as evidence, 220. 
 
 of fictitious consideration, 228. 
 
 where fraud is present, 219. 
 
 of deed, avoiding transfer, 10, 322. 
 
 of complaint, 140-157. 
 
 of answer, 158-167. 
 
 in deed, 284a. 
 
 explaining, 221. 
 
 not binding on creditors, 221. 
 RECONVEYANCE cannot be enforced, 396. 
 
 theory of the law, 396. 
 
 when allowed, 399. 
 RECORD, of chattel mortgage, effect of, 347. 
 
 withholding instrument from, effect of, 101, 234 //, 235, 
 
 2 35 «> 2 3 6 - 
 
 failure to record in fraud of bankrupt act, 237. 
 RECOVERING, improvements and rents, 26. 
 
 assets, 23-50. 
 RECOVERY, must conform to relief sought, 181. 
 
 must accord with complaint, 182. 
 REDEEMING mortgaged property, 4040. 
 REDEMPTION, recovering of mesne profits during period of, 26. 
 
 equity of, may be seized, 31. 
 REFEREE, judgment appointing irregular, 170. 
 
 assignee directed to account before, 316*:. 
 REFERENCE, when not ordered, 62a. 
 
 views of Gilbert, J., as to, 620. 
 REIMBURSEMENT, and subrogation, 192-195. 
 
 actual and constructive fraud, 192. 
 
 actual fraud defeats, 192. 
 
 constructive fraud does not defeat, 192, 194. 
 
 inequitable transactions set aside upon terms, 192. 
 
 when bill contains no offer of, 192. 
 
 when husband and wife are interested, 192. 
 
 outlay by creditor, 192. 
 I 52
 
 8 1 8 References] INDEX. [are to sections . 
 
 REIMBURSEMENT — continued. 
 
 policy of the law, 192. 
 (1.) JVo reimbursement at law, 193. 
 
 transaction at law wholly valid or wholly void, 193. 
 
 constructive fraud, 194. 
 
 not so in equity, 192, 193. 
 (2.) Subrogation of purchaser to creditors lien, 195. 
 
 when permitted, 195. 
 RELATIONSHIP, effect of, 93, 242. 
 
 calculated to awaken suspicion, 242. 
 
 transaction will be closely scrutinized, 242. 
 
 influence of Salmon v. Bennett, 242. 
 
 not necessarily evidence of fraud, 242. 
 
 when coupled with other badges, 242. 
 
 as regards preferences, 390. 
 RELEASES exacted in assignments, 328. 
 
 regraded with disfavor, 328. 
 
 in what form permitted, 328. 
 RELIEF before and after sale, 58. 
 
 at law and in equity, 59, 60, 176 n. 
 RELINQUISHMENT of dower, consideration for settlement, 299. 
 REMAINDER, estates in, recoverable, 29. 
 
 man, is creditor, 90. 
 REMEDIES OF CREDITORS, 51-72. 
 
 See Creditors' Remedies. 
 
 two-fold object, 360. 
 
 governed by lex fori, 64. 
 
 forms of relief, 4, 51. 
 
 reference not ordered, 62a. 
 REMEDY at law, 59. 
 
 by suit in equity, 60. 
 REMOVAL, or dismissal of receiver, 190. 
 
 similar to jurisdiction dissolving injunction, 190. 
 
 employment of debtor no ground of, 190. 
 
 to federal courts, 71 
 RENEWAL CREDITOR, is existing creditor, 89. 
 RENTS, and profits recoverable, 26. 
 
 debtors cannot give away, 26. 
 REPAYMENT, of purchase price, 192. 
 REPELLING, inference of fraud, 250. 
 REPLEVIN, assignee may bring, 3160. 
 REPRESENTATIVES, as complainants, 112, 113. 
 
 bringing in as defendants, 132^.
 
 References^ INDEX [are to sections. 
 
 REPRESENTATIVES - continued. 
 
 suits against, 136. 
 REPUGNANT CONDITIONS, void, 362, 363. 
 
 denned, 363 n. 
 
 theory of the law, 362. 
 REQUISITES of a fraudulent conveyance, 23. 
 
 characteristics and classes, 15. 
 RES ADJUDICATA, question of intent, when, 203. 
 
 judgment, when, 168. 
 
 conclusive in other forms of procedure, 169. 
 RESCUERS, judgment creditor's right against, 62. 
 RESERVATIONS, by debtor, creditors may reach, 32. 
 
 secret, effect of, 272. 
 
 avoid assignments, 326. 
 
 of exempt property, not fraudulent, 326. 
 
 of surplus, by assignor, 327. 
 RES GESTx'E, concerning, 276, 279. 
 
 importance of the rule, 276. 
 
 illustrations, 276. 
 
 must be concomitant with principal act, 279. 
 
 duty of the jury as to, 276. 
 RESTITUTION, reimbursement and subrogation, 192, 193, 195. 
 RESTRAINTS upon alienation, 14, 361. 
 
 by debtor in fraud of creditors, 14. 
 
 theory of the law, 361. 
 
 English and American cases, 361 n. 
 
 not favored, 362. 
 
 upon personalty, not allowed, 263 n. 
 RETURN of execution unsatisfied, 74, 86. 
 
 See Status of Attacking Creditors. 
 
 distinction between realty and personalty, 87. 
 
 raising the objection, 88. 
 
 chancery rule, 75. 
 
 of officer, conclusive, 74. 
 REVERSION, estates in, may be reached, 29. 
 REVOCATION, reserving power of, 358. 
 RHODE ISLAND, practice as to absconding debtors, 84. 
 
 as to change of possession, 250. 
 
 as to spendthrift trusts, 367a;. 
 RIGHT, to sue, transfer of, 92. 
 
 of creditors, existing and subsequent, 89, 97 n. 
 
 of creditors, protection of, 1. 
 
 of subrogation, not founded on contract, 195.
 
 820 References] INDEX. [are to sections . 
 
 ROBINSON v. ELLIOTT, rule embraced in, 348. 
 
 discussed in later case, 348. 
 
 opposing rule and cases, 352, 353. 
 ROMANS, laws of, concerning insolvents, 1. 
 ROYALTIES on books, recoverable by creditors, 37. 
 RULE as to exempt property, 46. 
 
 fraudulent purchases of exemptions, 47. 
 
 covinous alienations of exemptions, 48. 
 
 conflicting cases, 49. 
 
 abandoned exemptions, 50. 
 
 of construction of statute of Elizabeth, 20. 
 
 same at law and in equity, 29. 
 
 of procedure in federal courts, 71, 407, 4070. 
 
 judgment in personal actions, 80. 
 
 of property, in federal courts, 20. 
 
 RUSSIA, no presumption that common law prevails in, 64 n. 
 SACRIFICE, transfer to prevent, 325. 
 
 to prevent surplus, 347. 
 SALARY, not reached in supplementary proceedings, 61 n. 
 
 exempt sixty days before proceedings, 61 n. 
 
 of municipal officer, exempt, 61 n. 
 SALE, possession with power of, 267. 
 
 doctrine of Robinson v. Elliott, 348-351. 
 
 relief before and after, 58. 
 
 judgment avoids, only as to creditors, 171, 395-401. 
 
 declarations before and after, 277, 278. 
 SALES UPON CREDIT, effect of, 240, 332, 333, 356. 
 
 hinder and delay creditors, 332, 333. 
 SCHEDULES, fraudulent omissions from, 320. 
 
 not evidence, 274. 
 
 unintentional omission, 320. 
 SCHEMES of fraud, future, 96. 
 SEATS in stock exchange are assets, 35. 
 
 the cases discussed, 35. 
 
 not liable to execution, 35 n. 
 SECRECY, evidence of, 234. 
 is badge of fraud, 234. 
 
 and concealment to be considered by jury, 234. 
 agreement to conceal not per se fraudulent, 234. 
 Mr. May's views as to, 234 n. 
 SECRET PREFERENCE, 393.
 
 References^ INDEX. [are to sections. 821 
 
 SECRET PREFERENCE — continued. 
 
 when avoided, 393, 394. 
 SECRET TRUST, 234a, 272. 
 
 common form of fraudulent conveyance, 272. 
 
 policy of the law, 272. 
 
 apparent on face of deed, 272. 
 
 implied from extrinsic circumstances, 272. 
 
 as regards chattel mortgage, 356a. 
 SECURITY, more than necessary, effect, 241. 
 
 permitting conveyance to stand as, 141. 
 
 corrupted with fraud, no relief, 238. 
 SELECTING transfers to attack, 67. 
 SEPARATE estate of wife, free from husband, 304. 
 SEQUESTRATOR, when entitled to sue, 116.' 
 SERVICES by member of family, 218. 
 
 do not constitute valuable consideration, 218. 
 SET OFF, illustration of, 297^. 
 
 assignee takes property subject to, 319a. 
 SETTLEMENT, payable on bankruptcy, void, 364 ;/. 
 
 release of dower as basis of, 299. 
 
 See Marriage Settlement. 
 SEVERITY of Roman law, 1. 
 SHAM contrivance a fraud, 15. 
 SHERIFF, money in hands of, reached, t,^. 
 
 promise made to, available to creditor, 43 //. 
 
 as complainant, 81, 120. 
 
 what he must show against stranger, 297. 
 SHIFTING of burden, 271. 
 SHIP at sea, possession of, 256. 
 
 SILENCE, concealment of fraud by, not enough, 148, 148 ;/. 
 SIMPLE CREDITORS, cannot sue alienee in case, 62. 
 
 rights of, 73. 
 
 not entitled to injunction, 52. 
 
 rights of, 73. 
 
 remedies of, 73 n. 
 
 no bill by, in federal courts, 71. 
 
 cannot unite with judgment-creditors, 108. 
 SISTER, conveyance by, to brother, not fraudulent, 5. 
 
 preference to, dividend, 390. 
 SITUS, law of, governs in following real estate, 24. 
 SLANDER, claims for, cannot be reached, 34. 
 SLAVE, debtor sold as under early law, 1, 1 ". 
 SOLVENCY, evidence of, 95.
 
 822 References^ INDEX. [are to sections. 
 
 SOLVENCY — continued. 
 
 the cases considered, 95. 
 SON, to father, sale by, 242. 
 
 father may work for, 218. 
 
 sale to by debtor, 11. 
 
 services by, 218 ;/. 
 SMALL VALUE, gifts of, not avoided, 41. 
 SOUTH CAROLINA, creditor's bill against absconding debtor, 84. 
 
 trust income, 367^. 
 
 change of possession, 250. 
 SPECIFIC LIEN, by attachment, 81. 
 SPECIFICATION, of ground for removal of receiver, 190. 
 
 of particulars of action, 162^. 
 SPECULATION, placing property beyond risk of, 100. 
 
 such conveyances avoided by subsequent creditors, 100. 
 SPECULATIVE INFERENCE, not evidence of fraud, 5. 
 SPENDTHRIFT TRUSTS, 360-368. 
 
 policy of the law concerning, 360. 
 
 protests against, 360, 365. 
 
 Nichols v. Eaton, reviewed, 364, 365. 
 
 spread of the doctrine, 367a. 
 (1.) Aversion to exemptions not statutory, 360. 
 
 purpose of the law, 360. 
 
 creditor's property a trust fund, 360. 
 
 Williams v. Thorn, 360. 
 
 wife's interest in trust income, '45. 
 (2.) Restraints upon alienations, 361, 362. 
 
 theory of the law, 361. 
 
 treated as void, 361. 
 
 repugnant conditions, 362. 
 
 illustrations, 362. 
 (3.) Nichols v. Eaton ; the point actually decided, 364. 
 
 the dictum, 365. 
 
 comments upon it, 365. 
 
 the correct rule, 366. 
 (4.) Broadway National Bank x. Adams, 367. 
 
 review of the case, 367. 
 
 doctrine dissented from, 367. 
 
 trend of the cases, 3670. 
 (5.) Spendthrift trusts in Pennsylvania, 368. 
 
 birth-place of the doctrine, 368. 
 
 dissent from it in that State, 368. 
 STAND by, doctrine of, 287. 
 STATE, may attack conveyance to defeat fines, 123 //.
 
 References] INDEX. \_are to sections. g21 
 
 STATE COURT, proceeding on judgment in Federal court, 78. 
 STATUS OF ATTACKING CREDITORS, 73-78, 106. 
 (1.) Rights of creditors at large, 52, 73. 
 
 cannot assail assignments, 73. 
 
 must have a lien, 73. 
 
 protecting attachment lien, 73. 
 
 equity not a remedy to collect debts, 73. 
 
 judgment and execution essential, 73. 
 
 remedy at law must be pursued, 73. 
 
 judgment conclusive as to indebtedness, 74. 
 
 adjudication of debt, 74 n. 
 
 rule as to necessity for judgment ancient, 75. 
 
 creditor must have lien, 75. 
 
 existed in England, 75. 
 
 recognized in chancery, 75. 
 
 statute of limitations, 73. 
 (2.) Judgments sufficient, 76. 
 
 ordinary money judgment, 76. 
 
 judgment in chancery sufficient, 76. 
 
 justice's judgment, when docketed, 76. 
 
 confession of judgment, 76. 
 
 judgment on offer, 76. 
 
 demand classified by probate court, 76. 
 
 in equitable actions, 80. 
 (3.) Judgments insufficient, 77. 
 
 barred by statute, 77. 
 
 judgment not personal, 77. 
 
 justice's judgment, 77. 
 
 foreign judgment, 78. 
 
 must bind all property, 77. 
 (4.) Creditors of a decedent, 79. 
 
 must have judgment in New York, 79. 
 
 statutory change, 79. 
 
 rule otherwise in other States, 79. 
 
 reasons of the rule, 79. 
 (5.) Specific lien by attachment, 81. 
 
 the cases reviewed, 81. 
 
 New York cases, 81, 81 //. 
 
 lien by attachment insufficient, 81. 
 (6.) When judgment is unnecessary, 83. 
 
 no remedy at law, 83. 
 
 creditor under an injunction, S^. 
 
 controversy in the cases, 83. 
 
 absconding and non-resident debtors, 84.
 
 824 References^ INDEX. \are to sections. 
 
 STATUS OF ATTACKING CREDITORS —where judgment is 
 unnecessary — continued. 
 
 exceptional practice in several States, 85. 
 
 cestui que trust, need not have, 127^. 
 (7.) As to execution, 86, 87. 
 
 return of execution unsatisfied, 86. 
 
 property in name of third party, 82. 
 
 distinction between realty and personalty, 87. 
 
 raising the objection, 88, 88«. 
 STATUTE, 13 Eliz., c. 5, 19. 
 
 basis of all legislation, 19. 
 
 its object, 11, 19. 
 
 to prevent fraudulent deeds, 19. 
 
 universally adopted, 19, 19 n. 
 
 prevails in District of Columbia, 19 ;;. 
 
 bottomed on immoral intention, 9 n. 
 
 its interpretation and construction, 20. 
 
 merely declaratory of common law, 16 n. 
 
 27 Eliz., c. 4, 21. 
 
 of limitations, begins to run when, 292. 
 
 of limitations, in equity, 293. 
 
 of frauds, 311. 
 
 controlling in Federal courts, 71. 
 
 2 Rich. II, 18. 
 its purpose, 18. 
 
 3 Hen. VII, c. 4, 18. 
 50 Edw. Ill, c. 6, 18. 
 
 foreign statutes, effect of, 405 n. 
 STATUTE OF FRAUDS, debtor not bound to plead, 215. 
 
 contract to convey land within, 293a. 
 
 agreement outside of, 296. 
 STATUTES OF ELIZABETH, declaratory of common law, 16. 
 STATUTES OF LIMITATIONS, 292. 
 
 rule in New York, 73. 
 
 in equity, 293. 
 STATUTORY EXEMPTIONS, 46-50. 
 
 aversion to exemptions not statutory, 360. 
 
 covinous alienations of, 48. 
 
 conflicting cases, 49. 
 
 abandoned, 50. 
 STATUTORY liability of stockholders, 139. 
 
 STATUTORY PROCEEDINGS, changes as to executors and 
 administrators, 112.
 
 References] INDEX.- [are to sections. 82 5 
 
 STEARNS v. GAGE, rule in, 375. 
 STOCK EXCHANGES, seats in, are property, 35. 
 may be reached by creditor, 35. 
 seats not liable to execution, 35 n. 
 character of, discussed, 35. 
 STOCKHOLDERS, as defendants, 119, 139. 
 when creditors may sue, 119. 
 statutory liability of, rests in contract, 139. 
 may be sued in foreign court, 139. 
 when not entitled to sue, 73. 
 suit when receiver is defendant, 73. 
 suit by, 109. 
 joining, 128. 
 STOCKS may be reached, 24. 
 
 lis pendens does not apply, 157. 
 STORY, J., constructive fraud denned by, 323. 
 STUDIED FORMALITY, will not save transaction, 241. 
 SUBROGATION, of surety, in. 
 
 of purchaser to creditor's lien, 195. 
 the rule in New York, 195. 
 r and reimbursement, 192, 193, 195. 
 of subsequent creditors, 103. 
 not founded on contract, 195. 
 no protection of fraudulent party, 195. 
 
 See Reimbursement and Subrogation. 
 SUBSEQUENT ACTS, to prove original purpose, 227. 
 SUBSEQUENT CREDITORS, 96-106. 
 
 See Existing Creditors. 
 (1.) Fraud upon subsequent creditors, 96, 96 n, 97 n, 141. 
 the practical distinction, 96. 
 the cases considered, 96-106. 
 intent to defraud, 96, 97, 202. 
 question for the jury, 96 n. 
 rights of, considered, 97, 97 n. 
 statute of Elizabeth did not mention, 98. 
 (2.) Intent as affecting, 96, 202. 
 
 must be directly shown, 98. 
 may be inferred, 98. 
 
 no difference between existing and subsequent, 98. 
 alleging fraud on, 141. 
 (3.) Placing property beyond risk of ventures or speculations, 100, 101. 
 theory of the law, 96, 97, 100, 101. 
 rule restated, 100 n.
 
 826 References] INDEX. [are to sections. 
 
 SUBSEQUENT CREDITORS —placing property beyond risk of 
 ventures or speculations. — continued. 
 
 conveyances avoided, 101. 
 
 failure to record, 101. 
 
 transfers sutained, 102. 
 (4.) Mixed claims, 104, 105. 
 
 subsequent creditors sharing with antecedent creditors, 104. 
 
 accruing prior and subsequent, 104. 
 
 subrogation of subsequent creditors, 103. 
 (5.) With notice, 106. 
 
 constructive notice not sufficient, 106. 
 
 cannot generally avoid alienation, 106. 
 SUBSEQUENT PURCHASERS, attacking fraudulent convey- 
 ance, 21, 107. 
 SUBSTANTIAL FACTS, to prove fraud, 5. 
 SUBSTITUTED PROPERTY, rule as to, 28. 
 
 goods, lien extended to, 385. 
 SUFFICIENT CONSIDERATION, 222. 
 
 not sufficient, 223. 
 
 judgment to sustain bill, 76. 
 SUING on behalf of others, 109. y 
 
 SUIT IN EQUITY, 51, 60. 
 
 advantages of, 60. 
 SUPPLEMENTARY PROCEEDINGS, nature of, 61, 61 n, 64. 
 
 remedy of, 61, 61 n. 
 
 a special proceeding in New York, 61, 116 n. 
 
 substitute for creditors' bills, 61, 61 n. 
 
 commencement of, confers lien, 61. 
 
 lien of, how defeated, 61. 
 
 lien, effect of death, 61 ;;. 
 
 what can be reached, 61, 64. 
 
 not exclusive, 61. 
 
 judgment to sustain, 76. 
 
 judgment must bind all property, 77. 
 
 creditors may abandon, 61. 
 
 claims of third party, 61. 
 
 must be based on judgment in personam, 61, 76. 
 
 receiver appointed in, 63, 188. 
 
 receiver represents creditors, 61. 
 
 title of receiver, 116, 116 n. 
 
 interests reached by, 61. 
 
 may be brought in federal courts, 61 n. 
 
 when not in State courts, 61 n.
 
 References^ INDEX. \are to sections. X 1 J 
 
 SUPPLEMENTARY PROCEEDINGS — continued. 
 
 salary and earnings, 61 n. 
 SUPPORT, of debtor in early times, i ;/. 
 
 as consideration for transfer, 211. 
 
 attacking transfer to defeat, 122. 
 
 claim of wife to, 299a. 
 SUPPRESSION or concealment, subsequent fraud, 235. 
 
 of deed or mortgage, 235, 235 n. 
 
 in fraud of bankrupt act, 237. 
 SUPREME COURT, follows State rule, 71. 
 
 rule of property in, 20. 
 
 appeals to, 407, 407^. 
 
 certificate of division, 407a. 
 
 opinion about chattel mortgages, 348, 353. 
 SURETY, as creditor, 90, in. 
 
 on guardian's bond, 90 ;/. 
 
 procedure by, 111 n. 
 
 assumption by as consideration, 209. 
 
 claim against misjoinder, 135. 
 
 on appeal bond, 111. 
 
 entitled to subrogation, in. 
 
 as simple creditor, in. 
 SURPLUS, income may be reached, 45, 360. 
 
 theory of the law, 45. 
 
 creditor's lien on, 45. 
 
 moneys reached, 63. 
 SURROGATE, cannot determine as to fraudulent transfer, 12 //. 
 SUSPICION, insufficient to establish fraud, 5, 228. 
 
 tangible facts must be shown, 283. 
 
 evidence must convince the understanding, 283. 
 SWORN ANSWER, taken as true when, 160. 
 SYMPATHY, with fraudulent debtors, 5. 
 
 TALENTS of debtor, creditor cannot command, 500. 
 TANGIBLE FACTS, to establish fraud, 5. 
 
 suspicions insufficient, 5, 6, 283. 
 TANGIBLE PROPERTY may be reached, 23. 
 TEMPORARY resumption of possession, 258. 
 
 when does not render sale fraudulent, 258. 
 
 opposing illustration, 258. 
 
 improvements, 26. 
 TEMPTATION of debtors to commit fraud, 2. 
 TENANT IN FEE, condition not to alien, void, 362.
 
 82o References], INDEX. \ are to sections. 
 
 TENNESSEE, spendthrift trusts, 367^. 
 TERRITORIAL jurisdiction, change of venue, 157a. 
 TESTIFYING as to intent, 205. 
 
 as to value, 284. 
 
 See Evidence. 
 TESTIMONY must conform to pleading, 285. 
 
 to overcome answer, 160. 
 
 as to intent, 205. 
 
 as to matters not in issue, excluded, 285. 
 TESTS, of fraudulent conveyances, 15, 15a. 
 TEXAS, joinder of claims, 85. 
 
 change of possession, 250. 
 THIRD PARTY, reaching property purchased in name of, 57, 82. 
 
 is it liable to execution, 57. 
 
 may be attached, 57. 
 
 consideration paid by debtor for, 57, 57 n. 
 
 enforcing promises of, 43. 
 
 doctrine of Lawrence v. Fox, 43. 
 
 conflict in the cases, 43. 
 
 promise to sheriff available to creditor, 43 n. 
 
 claiming property in supplementary proceedings, 61. 
 THREATENING to make assignment, 342. 
 
 not considered a ground of attachment, 342. 
 
 conflict in the cases, 342. 
 
 the safer rule, 342. 
 TITLE, on death of receiver, 189. 
 
 possession as evidence of, 245. 
 
 from fraudulent vendee, 386. 
 
 of personal representatives, 112 ,113. 
 
 of assignee in bankruptcy, 114. 
 
 of general assignee, 115. 
 
 of receiver, 116, 116 //. 
 
 of receiver of corporation, 117, 117 n. 
 
 judgment transferring, 172. 
 
 equity cannot create, 60 n. 
 TORT CLAIMS, cannot be reached, 34. 
 
 creditor, 123. 
 
 not transferred by assignment, 3160. 
 TORT, to property, is assignable, 34. 
 
 claimant is a creditor, 90, 123. 
 
 creditor as complainant, 123. 
 
 illustrations of rights of, 123.
 
 References] INDEX. [are to sections. g2Q 
 
 TRACING, THE FUND, 44. 
 
 misapplied money, 44, 44 n. 
 
 following insurance money, 44. 
 
 goods in hands of sheriff, 44. 
 
 may be followed into any property, 44. 
 TRADE-MARKS, are assets, 36. 
 
 pass to assignee as property, 36. 
 
 under bankrupt law, 36. 
 
 personal, rule as to, 36. 
 TRANSACTIONS, palpably fraudulent, 10. 
 
 presumed to be honest, 5. 
 
 motives of, 7. 
 
 fraud must be inception of, 227. 
 
 with deceased, testimony concerning, 121. 
 
 between husband and wife, 300. 
 
 proof of, in separate instrument, 6. 
 TRANSFER pending suit, effect of, 22, 233. 
 
 is mark of fraud, 233. 
 
 of right to sue, 92. 
 
 to prevent sacrifice, 325. 
 
 of property by assignment, 316a. 
 TRANSFERS inuring as assignments, 339. 
 
 presumptively fraudulent, 248. 
 TRESPASS, judgment-creditor in, as complainant, 123. 
 TRIAL, framing issues for, 51, 51 /;. 
 
 TRICK AND CONTRIVANCE to defraud creditors, 15. 
 TRIVIAL VALUE, property which is of, 23, 41. 
 
 not fraudulent to assign, 23. 
 TRUST, for debtor's benefit avoids conveyance, 10. 
 
 spendthrift, 360-368. 
 
 See Spendthrift Trusts. 
 
 for indefinite period, fraudulent, 11. 
 
 decree declaring binds creditors, 45 n. 
 
 fraud apparelled and clad with, 22. 
 
 enforcement of, without judgment, 84. 
 
 property in name of third party, 57, 57 n. 
 
 essential to create assignment, 316, 316 n. 
 
 matter of equity jurisdiction, 56. 
 TRUST FUND, creditor's property considered as, 360. 
 
 capital of corporation is, 117. 
 TRUST INCOME available to creditors, 45, 360. 
 
 above, what is needed for support, 45. 
 
 Williams v. Thorn considered, 45.
 
 8^0 References] INDEX. \are to sections. 
 
 TRUST INCOME — continued. 
 
 interest of wife in, 45. 
 TRUST PROPERTY, does not pass by assignment, 316^. 
 TRUSTEE, and cestui que trust as defendants, 137. 
 
 when may sell on credit, ^^ "■ 
 
 fraudulent grantee as, 385. 
 
 ex maleficio, 300. 
 TURPITUDE, need not be shown, 8. 
 
 tendency of the cases, 8. 
 TWELVE TABLES, law as to insolvents, 1 n. 
 TWYNE'S CASE, stated and discussed, 22. 
 
 decided in 1601, 22. 
 
 its great importance, 22. 
 
 restated in Supreme Court, 22 //. j^ 
 
 1 
 badges of fraud in, 22, 231. 
 
 rule as to change of possession in, 245. 
 
 its limited scope, 22. 
 
 growth of the law since, 22. 
 
 effect of secrecy as shown by, 22. 
 
 generality of gift, 22. 
 
 construed, use by vendor, 22. 
 
 expression of honesty in deed, 22. 
 
 rule in New York, 93. 
 
 in England, 93. 
 
 UNCERTAINTY IN PLEADING, reached by motion, 140 n, 
 UNDISCLOSED INTENT, evidence of inadmissible, 205 ;/. 
 UNDUE INFLUENCE, 13 ;/. 
 
 not defined by the courts, 13 ;/. 
 UNFINISHED WORK, finishing up by assignee, 330, 331, 331 ;/. 
 UNILATERAL evil intent will not overturn transaction, 207. 
 UNITED STATES courts, practice in, 71. 
 
 judgment in, 78, 78 n. 
 
 local rule governs in, 20. 
 
 not interfere with State receiver, 117. 
 UNITED STATES SUPREME COURT, appeal to, 407. 
 
 certificate of division, 407^. 
 UNITING causes of action, 55. 
 
 joinder of claims, 54. 
 
 various illustrations, 55. 
 
 ejectment and equitable relief, 55. 
 
 complainants, 107. 
 
 defendants, 132.
 
 References^ INDEX. [are to sections. %"1\ 
 
 UNNECESSARY, judgment when, 83. 
 
 UNPAID SUBSCRIPTIONS, joinder of stockholders, 128. 
 
 trust fund, 117. 
 UNREASONABLE inadequacy of price, 209. 
 
 evidence of secret trust, 209. 
 UNRECORDED DEED or mortgage, 235, 235 n. 
 
 concealment in fraud of bankrupt act, 237. 
 UNREPRESENTED PARTIES, no judgment in favor of, 173. 
 UNSATISFIED EXECUTION, return of, 86, 86 //. 
 
 distinction between realty and personalty, 87. 
 
 when excused, 75. 
 UNUSUAL ACTS and transactions, 241. 
 
 constitute badges of fraud, 241. 
 
 various illustrations, 241. 
 USURY, claims not joined, 132 n. 
 
 debt, providing for, 286. 
 
 VALID or void at law, 51. 
 
 different rule in equity, 51. 
 
 title from fraudulent vendee, 386. 
 
 between the parties, fraudulent conveyances, 395-400. 
 VALUABLE CONSIDERATION, 207-223. 
 See Consideration. 
 
 what is, 209. 
 
 what may consist of, 209. 
 VALUE, as affecting fraudulent transfer, 23. 
 See Consideration. 
 
 property heavily encumbered, 23. 
 
 an important element, 23. 
 
 consideration anything of, 207. 
 
 former rule in New York, 23 //. 
 
 change of rule as to, 23 //. 
 
 Pennsylvania cases, as to, 23 n. 
 
 gifts of small value not fraudulent, 41. 
 
 proving it by experts, 284. 
 
 recovering judgment for, 177, 178, 178 n. 
 
 judgment cannot exceed, 3 n, 177, 178. 
 VARIANCE, rule as to, 155. 
 
 testimony must conform, 285. 
 
 judgment must be for relief demanded, 181. 
 
 must accord with complaint, 182. 
 VENDOR, recision for fraud, 53. 
 
 relief to, 399.
 
 832 References^ INDEX. \ are to sections. 
 
 VENDOR — continued. 
 
 evidence of insolvency of, 273. 
 
 possession, 245-267. 
 
 change sufficient, 255-258. 
 
 resumption, 258. 
 VENDEE, insolvency of, 274. 
 
 fraudulent, may create valid lien, 195. 
 
 judgment against, 192, 177, 180. 
 
 evidence of, 274. 
 
 title from fraudulent, 386. 
 
 allowance to fraudulent, 176. 
 
 extent of protection to, 207. 
 
 change of possession, 253. 
 
 marking with vendee's name, 253. 
 
 declarations in presence of, 278. 
 
 proof of ability to pay, 219. 
 
 power to confer preferences, 241. 
 
 testifying as to intent, 279^. 
 VENTURES, placing property beyond new, 100. 
 VENUE, change of, 157a. 
 
 land in foreign country, 157^. 
 VERDICTS, contradictory, 183. 
 
 when set aside, 204. 
 
 when given under misapprehension, 304. 
 VERIFICATION of pleading, 155, 167. 
 
 waiver of, 167. 
 
 defendant may verify, 167. 
 VERMONT, spendthrift trusts in, 367*7. 
 
 change of possession, 249. 
 VESSEL AT SEA, delivery of, 262. 
 
 VICTORIA, statute of as to voluntary conveyances, 93. 
 VIGILANT CREDITORS, entitled to preference, 392. 
 
 no preference in estate of decedent, 392. 
 VIRGINIA, creditor's bill against absconding debtor, 84. 
 
 trust income, 367a. 
 
 as to change of possession, 250. 
 VOID, assignment, purchase under, 322^. 
 
 word construed, 317. 
 VOID AND VOIDABLE ACT, as to fraudulent conveyances, 
 
 73, 317- 
 Chief Justice Shaw's view, 317. 
 VOIDABLE ACTS, " void " means "voidable," in act of Eliza- 
 beth, 31.7.
 
 References^ INDEX. [are to sections. 833 
 
 VOID CONDITIONS, 361. 
 VOID IN PART, void in toto, 194. 
 
 when valid provisions upheld, 194. 
 
 illustrations of the rule, 194. 
 
 the word construed, 317. 
 VOLUNTARY CONVEYANCES, as to existing creditors, 92. 
 
 to relatives, 242. 
 
 confusion in the cases, 93. 
 
 rule in New York, 93, 208. 
 
 in California, 208. 
 
 statute 56 and 57 Victoria, 93. 
 
 assignment for benefit of creditors, 316. 
 
 only presumptively fraudulent, 94, 208. 
 
 intent as affecting, 200, 208, 319. 
 
 the cases as to intent affecting, 200. 
 
 need not be mutual, 200. 
 
 assignments, 316. 
 
 See Fraudulent General Assignments. 
 
 defined, 208. 
 
 what is consideration, 209. 
 
 by corporation, 119. 
 VOLUNTEER, from fraudulent grantee, 201. 
 
 WAGES, preference in New York, 392^. 
 WAIVER of verification, 167. 
 
 amendment of 41st rule, 167 n. 
 
 defendant may verify answer, 167. 
 
 of defect of parties, 133. 
 WARRANTOR as creditor, 89. 
 WEST VIRGINIA, general creditor may sue, 73 n. 
 
 as to change of possession, 250. 
 WHAT CANNOT BE REACHED, 50a. 
 WHITE v. COTZHAUSEN, and conflicting cases, 339*7. 
 WHOLE ESTATE, conveyance of, 231. 
 WIDOW, as complainant, 121. 
 
 dower of, 30, 33, 61, 70, 299. 
 
 when cannot sue in chancery, 121. 
 
 when not entitled to annul transfer, 121. 
 WIFE, assignment of policy by, 23, 298-315. 
 See Husband and Wife. 
 
 right to life insurance, 23, 23 n. 
 
 crops on land of, 27. 
 
 fraud upon, form of procedure, 70. 
 53
 
 834 References^ INDEX. [are to sections. 
 
 WIFE — continued. 
 
 as creditor, 90, 122. 
 
 when claim should be rejected, 300 ?i. 
 
 services by, to husband, 218. 
 
 husband may act as agent for, 303. 
 
 husband need not work for in separate business, 218. 
 
 proof of fraud against, 212. 
 
 advances by, defense, 222. 
 
 separate property of, 304. 
 
 transfers affecting dower, 315. 
 
 money judgment against, 180. 
 
 judgment where husband's interest is reached, 192. 
 
 interest in trust income, 45. 
 
 enforcing alimony, 45. 
 
 status of, against husband, 45. 
 
 surplus income of, 45 n. 
 
 when injunction not granted to, 52. 
 
 wife as creditor, no n. 
 
 knowledge imputed to, 198 n 
 
 claim to support, 299^. 
 WILL, no right of creditors to oppose, 127. 
 WILLIAMS v. THORN, its doctrine approved, 46, 360. 
 WISCONSIN, right of personal representatives, 112. 
 
 insufficiency of estate, how determined, 112. 
 
 change of possession, 250. 
 
 trust income, 367*7. 
 WITNESS, competency of party as, 269. 
 
 competency of wife as, 313. 
 
 party as, 281. 
 
 cross-examination of, 281. 
 
 to overcome answer, 159. 
 WORD " disposed " construed, 12. 
 
 " fraud," use of in pleading, 141. 
 WORDS " hinder, delay, or defraud," 11. 
 
 discussed, 11. 
 
 intent to do either sufficient, n. 
 
 not synonymous, 11. 
 WRITTEN INSTRUMENT, difficulty of proving fraudulent, 6. 
 WRONG, suspicion of, not sufficient to maintain suit, 5. 
 WRONGFUL EFFECT, must accompany wrongful purpose, 107. 
 
 Whole Number of Pages, 904.
 
 
 
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