that the mortgage should be used as a cloak to protect the property reserved to Dean & Co. from their creditors, and possession of the goods was turned over to the plaintiff, not to satisfy the mortgage, but that the mortgage might be used to protect them from creditors." This ground we have already examined at length. (5) "That the whole evidence shows that there was a secret trust reserved to the use of Dean & Co." As to this we have no opinion, as the abstract does not assume to present the whole evidence, but what is returned we have carefully examined and it does not so impress us. Finally, it is insisted by appellant that as under Section 4659, Comp. Laws, the question of fraudulent intent is one of fact, the case should have been submitted to the jury. What ever meaning the courts may give to this section, and their constructions have not been entirely uniform,-it cannot be taken to mean that every case in which the question of intent is presented in the pleadings must go to the jury, without regard to the condition of the evidence. So far as we can discover, the only fact relied upon by appellant to show the fraudulent character of this mortgage, aside from those which we have noticed at length, is that the mortgage was given upon $4,300 worth of goods to secure an indebtedness of only $1,800. We doubt whether, in this jurisdiction, this fact alone-the margin between the debt and the security would in any case constitute a badge of fraud. Section 4658, Comp. Laws, provides that "a creditor can avoid the act or obligation of his debtor for fraud only where the fraud obstructs the enforcement by legal process of his right to take the property affected by the transfer or obligation," and sections 4388 and 4389 definitely declare that the creditor may enforce his right notwithstanding the mortgage, and provide how it may be done. There is reason for a contrary rule where a chattel mortgage transfers the property to the mortgagee, and so protects it from the direct reach of other creditors; but, where the mortgage is only a licn, we think the language of the court in Downs v. Kissam, 10 How. 102, is applicable: "It is no badge of fraud for a mortgage, which is a mere security, to cover more property than will secure the debt due. Any

creditor may pay the mortgage debt and proceed against the property." The section of the statute already referred to, which makes the question of intent one of fact and not of law does not interfere with the prerogative of the court to direct a verdict where the evidence is in such condition, with reference to its probative force, that the court would be bound to set aside any other verdict. This section was taken from New York, and such is the effect there given it. Bulger v. Rosa, 119 N. Y. 459, 24 N. E. Rep. 853. Such is also declared to be the proper construction and effect of a similar statute of Michigan, in Bank v. Bates, 120 U. S. 561, 7 Sup. Ct. Rep. 679, where the court says: The good faith of such transactions, where they are not void upon their face, is, under the statutes of Michigan, a question of fact for the determination of the jury. That rule does not, however, restrict the power of the court to give to the jury a peremptory instruction, covering such an issue, when the evidence is all on one side, or so overwhelmingly on one side as to leave no room to doubt what the fact is. See, also, as fully sustaining this view, Stevens v. Breen, 75 Wis. 598, 44 N. W. Rep. 645. After a eareful examination of this record, and of the errors assigned and ably and earnestly ar gued, we see no good reason for disturbing the judgment of the trial court, and the judgment is affirmed. All the judges concurring.

PROBERT V. MCDONALD, Sheriff.

1. Where the apparent owner of a piece of real estate upon which the sheriff has levied an execution to satisfy a judgment against the apparent owner's grantor brings an action against the sheriff to restrain such sale, and the sheriff answers, justifying his levy and threatened sale on the ground that the conveyance from plaintiff's grantor to plaintiff was void, because made with intent to delay and defraud creditors, the allegations of the answer charging such fraudulent intent are to be tested, as to sufficiency, by the same rules as similar allegations would be in a complaint in an action to set aside such conveyance on the same ground.

2. In such complaint, or such answer, the allegation that such conveyance

was made with intent to delay and defraud the grantor's creditors is sufficient, for it specifically avers the ultimate fact which, under the statute, makes such conveyance void.

3. In such case the answer need not allege that the grantor and judgment debtor had no other property from which the judgment might be satisfied. Such allegation might be necessary to justify a creditor in first invoking the equitable powers of a court, on the ground that a court of equity will not take jurisdiction of a controversy if the parties have an adequate remedy at law, but where the equitable powers of the court are already set in motion by the plaintiff, and the court has taken jurisdiction of the controversy, the case comes within the spirit of the rule that, when the equity powers of the court have been once brought into action, the active jurisdiction of the court will be continued "until full justice has been done between the parties.

4. In this case the evidence examined and held to support the judgment of the trial court.

(Syllabus by the Court. Opinion filed February 10, 1892.)

Appeal from circuit court, Jerauld county. Hon. D. HANEY, Judge.

Action to enjoin sale of real estate. Judgment for defendant. Plaintiff appeals. Affirmed.

The facts are stated in the opinion.

T. H. Null, for appellant.

An answer is not to be treated as a cross-bill or creditor's bill. Lawrence v. Bank, 35 N. Y. 320. In charging fraud, specific facts must be alleged showing in what the fraud consists. Bliss Code Pl. 2:1-389; Kerr Fraud & Mis. 365; Hysham v. Dunn, 5 Ark. 395; Bell v. Lamphrey, 52 N. H. 46: Darnell v. Rowland, 36 Ind. 346, Kent v. Snyder, 30 Cal. 666; Hopkins v. Woodward, 75 Ill. 62; Pendleton v. Galloway, 9 Ohio, 178; Spence v. Bruen, 3 Ala. 231; Smiths Adam v. Wood, 7 Atl. 881; Okenden v. Burner, 43 Ia. 619; Kinder v. Macey, 7 Cal. 206; Harris v. Taylor, 15 Cal. 348; Meeker v. Harris, 19 Cal. 279; Clodfelter v. Hulett, 72 Ind. 137.

The burden of proving the fraud is on the party alleging it. Kipp v. Lamoreaux, 45 N. W. 1002; Prichard v. Hopkins, 52 Ia. 120; Brown v. Dean, 52 Mich. 267; Adams v. Ryan, 61 Ia. 733; Bradford v. Bradford, 60 Ia. 201; Lavascor v. Wash burne, 50 Wis. 200; Darling v. Hurst, 39 Mich. 765. The deed

is prima facie evidence of title and there is no presumption of fraud in regard to it. Hayes v. Thomas, 1 Black, 80; Steward v. Thomas, 15 Gray, 171; Solomon v. Orsen. 5 Duer, 511; Carpenter v. Freeland, H. & D. Sup. 37; Gay v. Bidwell, 7 Mich. 519; Rebert v. Morris, 27 Mich. 306; Loomis v. Smith, 37 Mich. 595; Jordon v. White, 38 Mich. 253; Beglan v. Benedict, 70 N. Y. 202; Matthews v. Coe, 70 Id. 239; Pidcock v. Vorhis, 42 N. W. 646; Kaiser v. Weigley, 22 Penn. 179; Fifield v. Goston, 12 Ia. 218. Mere suspicion, leading to no certain results, is not sufficient to render the transfer invalid. Bump, Fraud. Conv. 584; Parkhurst v. McGraw, 24 Miss. 134; Blaw v. Gage, 44 Ill. 208; Wadingham v. Toker, 44 Mo. 132; Bartlett v. Blake, 37 Me. 124; Belk v. Massy, 11 Rich. 614; Roberts v. Guerncey, 3 Grant, 237; Phettiplacy v. Sayles, 4 Mason, 312; Hall v. Saloon, 4 Drew, 492; Thompson v. Sanders, 6 J. J. Marsh, 94; Glenn v. Grover, 3 Ind. 212; Farington v. Ramsey, 2 Douglas, 176; White v. Trotter, 21 Miss. 30; Hoose v. Robbins, 18 La. An. 648; King v. Moon, 42 Mo. 551; Waterman v. Donaldson, 43 Ill. 29; Jaeger v. Kelley, 52 N. T. 174.

Fraud is never imputed when the circumstances are consistent with honesty and purity of intention. Stiles v. Lightfoot, 26 Ala. 443; Lyman v. Cessford, 14 Iowa, 229; Dallam v. Renshaw, 26 Mo. 533; Schofield v. Blind, 33 Ia. 175; Rumbalds v. Parr, 51 Mo. 592; Page v. Dixon, 59 Mo. 43; Drummond v. Conn. 39 Ia. 442; Burleigh v. White, 64 Me. 23; Hatch v. Bagley, 66 Mass. 27; Miller v. Beadle, 65 Mich. 643; Mey v. Gulliman, 103 Ill. 172.

In case of a preference, intention to defeat execution or pendency of another creditor's suit, is immaterial. Ingham v. Wheeler, 6 Conn. 277; Dudley v. Danforth, 61 N. Y. 626; Bostwick v. Burnett, 74 N. Y. 317; Gray v. McAllister, 50 Ia. 497; Bump, Fraud. Conv. 350-351; Kuykendall v. McDonald, 15 Mo. 416; Murray v. Cason, Id. 15; State v. Benoist, 37 Id. 500; Potter v. McDonald, 31 Id. 74; Shelley v. Booth, 73 Id. 74; 39 Am. 481.

The fact that the preferred creditor had knowledge of the VOL. 2, S. D.-32

debtor's fraudulent intent is not sufficient.

Iglehart v. Willis,

58 Lex. 306; Hodges v. Coleman, 76 Ala. 103; Kolin v. Clement, 58 Ia. 589; Sexton v. Anderson, 8 S. W. 564; Bank v. Carter, 38 Pa. St. 446; Maiburg v. Brooks, 7 Wheat. 556; Id. v. Id., 11 Wheat. 781; Thompkins v. Wheeler, 16 Pet. 118; Dana v. Stanford, 10 Cal. 278; Ross v. Sedwick, 69 Cal. 247; Wheaton v. Nelville, 19 Cal. 46; Coranhovan v. Hunt, 21 Pa. St. 495; Carter v. Coleman, 81 Ala. 356; Shelley v. Bothe, 73 Mo. 74; Beurman v. Van Buren, 44 Mich. 496; Loomis v. Smith, 37 Id. 595; Bank v. Chapell, 40 Id. 447; Dudley v. Danforth, 61 N. Y. 626.

If the debtor was indebted to the grantee, all the suspicious circumstances go for nothing. Hill v. Bowman, 35 Mich. 191; Jordan v. White, 38 Mich. 253; Rahl v. Phillips, 48 N. Y. 125; Hobbs v. Davis, 50 Geo. 213.

O. F. Woodruff, (A. Gunderson, Associate,) for respondent. If the grantee knows that the object of the grantor is to defraud creditors, or knows of facts sufficient to excite the suspicion of a prudent man, the deed is void though he gives a full consideration therefor. Bank v. Douglas, 11 S. & M. 545; Edgell v. Lowell, 4 Vt. 405; Wakeman v. Grover, 4 Paige, 23; Bartles v. Gibson, 17 Fed. 293; Atwood v. Impson, 20 N. J. Eq. 156; Baker v. Bliss, 39 N. Y. 70; Avery v. Johnson, 27 Wis. 251; David v. Birchard, 53. Wis. 592; Hopkins v. Langdon, 30 Wis. 381; Kerr on Fraud, 236; Morse v. Williamson, 15 Atl. 587; Jackson v. Mather, 7 Cowen, 301; U. S. v. Houghton, 14 Fed. 545; Jones v. Powels, 3 M. & Keene, 581; Rockport Co. v. Mastin, 39 N. W. 219; Gallober v. Martin, 6 Pac. 267; Nichols v. Nichols, 18 Atl. 143. If a part of the consideration is nominal or colorable, contrived to hinder, delay or defraud creditors, the whole transfer is void. Bump, F. Conv., 476; Marriott v. Givens, 8 Ala. 649; Tatone v. Hunter, 14 Ala. 557; McKenty v. Gladwin, 10 Cal. 227; Scales v. Scott, 13 Cal. 76; Mead v. Combs, 19 N. J. Eq. 112.

Where testimony has been given tending to establish a combination to defraud creditors, the declarations of either party, though not made in the presence of each other, are proper evi