and trusts for the grantor,20 as to preference of creditors," and other issues. A statement of law merely technically incorrect is not prejudicially erroneous, where by the use of proper words the legal result would be the same.23 An instruction which requires a higher degree of proof than is ordinarily required by law is erroneous." 24 The court may properly refuse to instruct the jury that in the absence of express evidence to establish the fraud the plaintiff will be bound by the evidence of the defendant, which shows that the conveyance was made in good faith and for a valuable consideration.25 A charge defining fraudulent conveyances in the language of the statute,26 or substantially so," is sufficient. Where the statute requires that the intent be

27

20. Hill v. Rutledge, 83 Ala. 162, 4 So. 135.

21. Archer v. Long, 38 S. C. 272, 16 S. E. 998; Sonnentheil v. Texas Guaranty, etc., Co., 10 Tex. Civ. App. 274, 30 S. W. 945.

22. Fearey v. O'Neill, 149 Mo. 467, 50 S. W. 918, 73 Am. St. Rep. 440, duty to define fraudulent;" Hudson v. Willis (Tex. Civ. App. 1894), 28 S. W. 913, understanding of the seller as determining the question of ownership; Hoffer v. Gladden, 75 Ga. 532, what would excite suspicion that a transaction was unfair need not be stated to the jury.

23. Masters v. Teller, 7 Okla. 668, 56 Pac. 1067.

24. N. Y.-Newman v. Cordell, 43 Barb. 448.

U. S.-Baer v. Rooks, 50 Fed. 898, 2 C. C. A. 76, an instruction that fraud is never presumed but must be proved is correct, although it fails to mention that fraud, like any other fact, may be proved by circumstantial

evidence.

Ala. Nelms v. Steiner, 113 Ala. 562, 22 So. 435.

Tex.-Schmick v. Noel, 72 Tex. 1, 8 S. W. 83; Sparks v. Dawson, 47 Tex. 138.

Wis.-Kaufer v. Walsh, 88 Wis. 63, 59 N. W. 460.

25. Newman v. Cordell, 43 Barb. (N. Y.) 448.

26. Hanford v. Artcher, 1 Hill (N. Y.), 347; Banning v. Marleau, 121 Cal. 240, 53 Pac. 692; Rutledge v. Hudson, 80 Ga. 266, 5 S. E. 93: Hoffer v. Gladden, 75 Ga. 532.

27. Boise v. Henney, 32 II. 130.

to hinder, delay, or defraud, it is erroneous to instruct that the conveyance to be void must be made with intent to hinder, delay, and defraud.28 Where a transaction falls within a particular paragraph of a statute, the court may give in its charge to the jury not only such paragraph but also another paragraph of such statute, where they serve to illustrate each other.29 The charge must be construed in connection with the subject matter to which it relates,30 and if an instruction has a clear and definite meaning when applied to the only question before the jury it is sufficient, 31 Instructions are to be construed as a whole, and the fact that one portion of them considered separately might be open to objection does not constitute error, if the charge is correct when taken as a whole.32

§ 14. Requests for instructions.-Parties are entitled to instructions correctly stating the law of the case and correctly applying the law to the facts of the case, but the court need not submit a request to charge that is sufficiently covered by

28. Evans v. Coleman, 101 Ga. 152, 28 S. E. 645; Coon v. McClure, 53 Neb. 622, 74 N. W. 65; Cook v. Greenberg (Tex. Civ. App. 1896), 34 S. W. 687; Pilling v. Otis, 13 Wis. 495. See also Burgert v. Borchert, 59 Mo. 80; Peeler v. Peeler, 109 N. C. 628, 14 S. E. 59; Norwegian Plow Co. v. Hawthorn, 71 Wis. 529, 37 N. W.

825.

29. Cribb v. Bagley, 83 Ga. 105, 10 S. E. 194.

30. Peck v. Carmichael, 17 Tenn. 325.

31. Lockwood v. Nelson, 16 Ala. 294; Lillie v. McMillan, 52 Iowa, 463, 3 N. W. 601.

32. Ind. T.-Swofford Bros. Dry Goods Co. v. Smith McCord Dry Goods Co., 1 Ind. T. 314, 37 S. W. 103.

Iowa. Anderson v. Kinley, 90

Iowa, 554, 58 N. W. 909; Sunberg v.
Babcock, 66 Iowa, 515, 24 N. W. 19.

Mo.-Fearey v. O'Neill, 149 Mo. 467, 50 S. W. 918, 73 Am. St. Rep. 440; Mansur-Tebbetts Implement Co. v. Ritchie, 143 Mo. 587, 45 S. W. 634.

Nev. Tognini v. Kyle, 15 Nev. 464. Tex.-Bruce v. Koch (Civ. App. 1900), 58 S. W. 189; Houston, etc., R. Co. v. Shirley (Civ. App. 1894), 24 S. W. 809.

Wash.-Dow v. Dempsey, 21 Wash. 86, 57 Pac. 355.

Wis.-Rindskopf v. Myers, 87 Wis. 80, 57 N. W. 967; Barkow v. Sanger, 47 Wis. 500, 3 N. W. 16.

33. McCormick v. Smith, 127 Ind. 230, 26 N. E. 825; City of Baltimore v. Williams, 6 Md. 235; Warren v. Carpenter, 99 Mich. 287, 58 N. W. 308; Fink v. McCue (Mo. App. 1907), 100 S. W. 549.

34

the general instructions, and, where from the circumstances of the case a requested instruction is unnecessary, the court may refuse to give it.35 Where the charge given is correct, it cannot be objected to on the ground that it does not contain a particular instruction unless there has been a request therefor. As a general rule a proper request need not be given in its exact language, but it is sufficient if it is covered by the instruction as given.37 An error in refusing to give a particular instruction asked correctly applying the law to the facts is not cured by a subsequent general charge on the subject.38

§ 15. Verdict and findings generally.-Where the evidence is insufficient to rebut the statutory presumption of fraud, and the jurors appear to have been too indulgent in their consideration of the transactions of fraudulent debtors, justice can be obtained by setting aside the verdict.39 A verdict finding no intent to defraud but an intent to delay is not void for inconsistency.40 Where the verdict of the jury is not necessarily contrary to the direction of the court, a judgment affirming such verdict will not be disturbed." As a rule, the rules as to verdicts and findings which obtain in civil actions generally apply in actions to set aside transfers by debtors as fraudulent as against creditors.42

34. Wallis v. Schneider, 79 Tex. 479, 15 S. W. 492; Reynolds v. Weinman (Tex. Civ. App. 1897), 40 S. W. 560; Traders' Nat. Bank v. Fry, 14 Tex. Civ. App. 403, 37 S. W.

672.

35. McClure v. Sheek, 68 Tex. 426, 4 S. W. 552.

36. Mayer v. Walker, 82 Tex. 222, 17 S. W. 505.

37. Winchester v. Charter,. 102 Mass. 272; State v. William Barr Dry Goods Co., 45 Mo. App. 96.

38. McCormick v. Smith, supra.

39. Hollacher v. O'Brien, 5 Hun (N. Y.) 277.

40. Monroe Mercantile Co. v. Arnold, 108 Ga. 449, 34 S. E. 176.

41. Caswell v. Harris (Cal. 1887), 13 Pac. 166.

42. U. S.-Doss v. Tyack, 14 How. 297, 14 L. Ed. 428, the court will not set aside a verdict on the affidavits of some of the jurors as to what they meant by their verdict.

Ga.-Cain v. Langston, 99 Ga. 89, 24 S. E. 892.

Pa. Oliver v. Reading Iron Co., 170 Pa. St. 396, 32 Atl. 1088.

43

§ 16. Special interrogatories and findings by jury.—A special verdict must find all the facts necessary to support a judgment, and where the jury renders a special verdict, in which it fails to find that at the time of the conveyance the alleged fraudulent debtor had no property subject to execution, the verdict is defective, and insufficient to support a judgment, Where the answers to special interrogatories submitted to the jury are inconsistent and contradictory, or the special interrogatories are insufficient, the findings of the jury will not support a judgment." Where from the instructions the jury could not have failed to understand that the material question was whether or not the conveyance was fraudulent, a special interrogatory is not erroneous in using the word "defeating" instead of "defrauding "45 Where goods seized on execution were claimed by the debtor's brother under a bill of sale from the debtor, which defendant alleged was fraudulent, it was error, in taking a special verdict, to refuse to submit questions as to the consideration for the bill of sale."

§ 17. Findings by court.-The findings by the court must be applicable to the issues and the evidence." Where, in an action to set aside a conveyance by a debtor as fraudulent, there is a special finding of facts, the fraudulent intent must be found, or the conveyance will not be set aside.48 The failure to find that

43. Line v. State, 131 Ind. 468, 30 N. E. 703; Holman v. Elliott, 65 Ind. 78.

44. Forepaugh v. Pryor, 30 Minn. 35, 14 N. W. 61; Fick v. Mulholland, 48 Wis. 310, 4 N. W. 527.

45. First Nat. Bank v. Fenn, 75 Iowa, 221, 39 N. W. 278.

46. Missinskie v. McMurdo, 107 Wis. 578, 83 N. W. 758.

47. Wallen v. Montague, 121 Ala. 287, 25 So. 773; Stephens v. Hallstead, 58 Cal. 193; Galentine v. Burbaker, 147 Ind. 458, 46 N. E. 903, find

ings insufficient; Clow v. Brown (Ind. App. 1904), 72 N. E. 534, findings sufficient; Kells v. McClure, 69 Minn. 60, 71 N. W. 827.

48. N. Y.-Vail v. Craige, 13 St. Rep. (N. Y.) 448.

Cal.-Bull v. Bray, 89 Cal. 286, 26 Pac. 873, 13 L. R. A. 576.

Ind. State Bank v. Backus (App. 1903), 66 N. E. 475, aff'd 160 Ind. 682, 67 N. E. 512; Owens v. Gascho, 154 Ind. 225, 56 N. E. 224; Morgan v. Worden, 145 Ind. 600, 32 N. E. 783; Sickman v. Wilhelm, 130 Ind. 480, 29

there was a fraudulent intent is equivalent to a finding that there was no such intent."9 But a special finding of facts is sufficient if the intent to defraud is a necessary conclusion of law from the facts found,50 and the findings of the court may be sufficient to negative the charge of fraud.51 A finding by the court that a husband conveyed land to his wife to keep it from his creditors is sufficient to negative the payment by her of any consideration.52 A finding that a transfer of property was not solely in consideration of a pre-existing debt, but chiefly as a gift, is in effect a finding that there was a valuable consideration, which was, however, in the opinion of the court, inadequate, and brings the transaction within the rule that inadequacy of consideration is not of itself sufficient, even as against creditors of an insolvent debtor, to authorize a court to find fraud as a conclusion of law.53 In an action to set aside a deed for fraud, a finding by the court that the paper was signed, sealed, and acknowledged, and caused to be recorded by the grantor, and that the grantee was ignorant of the existence of the deed until several years after it was recorded, is insufficient to support a judgment against the grantee, where there is no finding that the deed was delivered to him.54 Where the court made special findings of facts, and stated conclusions of law thereon, a failure to find that the

N. E. 908; Fletcher v. Martin, 126
Ind. 55, 25 N. E. 886; Citizens' Bank
v. Bolen, 121 Ind. 301, 23 N. E. 146;
Stout v. Price, 24 Ind. App. 360, 55
N. E. 964, 56 N. E. 857.

Mo.-Robinson v. McCune, 128 Mo. 577, 30 S. W. 156.

Va. Fisher v. Dickinson, 84 Va. 318, 4 S. E. 737.

49. State Bank v. Backus, supra; Selz v. Mayer, 151 Ind. 422, 51 N. E. 485.

50. Corbin v. Goddard, 94 Ind. 419; Smith v. Conkwright, 28 Minn. 23, 8 N. W. 876; Jordan v. Buschmeyer, 97 Mo. 94, 10 S. W. 616.

A conclusion of law that a con

veyance was fraudulent is a non squintur, where the fact is found to be that the debtor's intention was to insure the payment of as much of his indebtedness as possible. Jarvis v. Banta, 83 Ind. 528. See also Zacharia v. Swanson, 34 Tex. Civ. App. 1, 77 S. W. 627.

51. Fredericks v. Clarke, 3 Mont. 258; Hargadine v. Davis (Tex. Civ. App. 1896), 34 S. W. 342.

52. Wilson v. Spear, 68 Vt. 145, 34 Atl. 429.

53. Jamison V. King, 50 Cal.

132.

54. Holmes v. Little, 86 Hun (N. Y.), 226, 33 N. Y. Supp. 225.