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the grantee cannot afterwards set up a valid claim to the property on the ground of the original fraudulent conveyance.95 A party to whom land was conveyed without negotiation or consideration, and who afterwards conveyed it back to the original grantor, is not in a position to question the motive of such grantor in making the original conveyance.

96

§ 10. Right to redeem property transferred as security.— Equity will not interfere to declare a contract or conveyance, which on its face is absolute, to be a trust or mortgage, on the ground that it was in fact intended as a mortgage," or collateral security for a debt,98 and thus allow the grantor to redeem or

95. Fargo v. Ladd, 6 Wis. 106. 96. Knight v. Dalton (Kan. 1905), 83 Pac. 124.

97. N. Y.-Harris v. Osnowitz, 35 App. Div. 594, 55 N. Y. Supp. 172, a conveyance of property by an insolvent firm to one of its creditors in satisfaction of his debt, with a secret understanding to reconvey it to the wives of the grantors, being fraudulent as to creditors, cannot be upheld as a mortgage.

Ala.-Brantley v. West, 27 Ala.

542.

Cal.-Ybarra v. Lorenzana, 53 Cal.

197.

Ill.-Halloran v. Halloran, 137 Ill. 100, 27 N. E. 82, the grantor cannot have a deed absolute on its face declared a satisfied mortgage and canceled.

Ind.-Kitts v. Willson, 130 Ind. 492, 29 N. E. 401.

Ky.-Thomas v. McCormack, 39 Ky. 108; Wright v. Wright, 12 Ky. 8. Md.-Brown v. Reilly, 72 Md. 489, 20 Atl. 239.

Mass.-Hassam V. Barrett, 115 Mass. 256. Compare Taylor v. Weld, 5 Mass. 109.

Mich.-Patnode V. Darveau, 112 Mich. 127, 70 N. W. 439, 71 N. W. 1095, but a conveyance of a debtor's homestead, which is not subject to the claims of creditors, for the purpose of placing it beyond their reach, does not preclude him from having the deed declared a mortgage, if the circumstances justify such relief. Compare Crawford v. Osmun, 70 Mich. 561, 38 N. W. 573, where a woman, in order to shield her property from her husband's debts, conveys it to another, to whom he owes a debt secured by a lien on the same property, she will not be estopped from maintaining a bill to redeem, the parties being in collusion.

R. I.-Apponang Bleaching, etc.,
Co. v. Rawson, 22 R. I. 123, 46 Atl.
455.

S. C.-Anderson v. Rhodus, 12
Rich. Eq. 104.

Can. Mundell v. Tinkis, 6 Ont.
625.

Eng. Baldwin v. Cawthorne, 19
Ves. Jr. 166, 34 Eng. Reprint, 480.

98. Moore v. Tarlton, 3 Ala. 444,
37 Am. Dec. 701, such a deed being
void at law for fraud in fact, is void

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become entitled to a reconveyance on payment of the debt, where the evidence shows that the transaction was intended to defraud the grantor's creditors, unless the parties were not in pari delicto, although a fraudulent mortgagor may be permitted to redeem from the mortgage. But where the property was transferred in pledge or as collateral security only, or where the deed though absolute in form is in fact a mortgage, as security for a debt, and also to cover the property to prevent other creditors from attaching,3 or where a fraudulent conveyance absolute in form, but in fact a mortgage, was declared to be an absolute sale for the purpose of delaying creditors, such relief may be granted.

§ 11. Enforcement of fraudulent contract or conveyance in general. A party to an executory agreement, made to defraud creditors, can, in most jurisdictions, maintain no suit to coerce its execution. The law will not interfere to enforce, as between the parties, a fraudulent contract which is executory. Although the law will not aid either party in the execution of a contract of sale made in fraud of creditors, it will not relieve either party

in toto, and cannot be enforced in equity to any extent; York v. Merritt, 77 N. C. 213.

99. Herrick v. Lynch, 150 Ill. 283, 37 N. E. 221, aff'g 49 Ill. App. 657; O'Connor v. Ward, 60 Mo. 1025.

1. Pierce v. LeMonier, 172 Mass. 508, 53 N. E. 125, it is not necessary in order to redeem from a fraudulent mortgage to show that the transaction has been purged of the fraud.

2. Jones v. Rahilly, 16 Minn. 320, and the assignor of personal property may redeem it.

3. Still v. Buzzell, 60 Vt. 478, 12 Atl. 209, a grantor held entitled to reconveyance on payment of the debt, though, as against other creditors, the deed was fraudulent and void.

4. Ballard v. Jones, 25 Tenn. 455, this did not preclude the mortgagor

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Ga.-Parrott v. Baker, 82 Ga. 364, 9 S. E. 1068; Hill v. Taylor, 81 Ga. 516, 8 S. E. 879; Goodwyn v. Goodwyn, 20 Ga. 600.

Ill.-McElroy v. Hiner, 133 Ill. 156, 24 N. E. 435; Ryan v. Ryan, 97 Ill. 38.

Ky.-Norris v. Norris, 39 Ky. 317, 35 Am. Dec. 138; Kingsbury v. Haswell, 6 Ky. L. Rep. 591.

after it has been executed." Where the vendor has a right to sell and his agreement to convey is fair, his insolvency and the rights of his creditors cannot be urged in defense of an action for specific performance. And the fact that the original conveyance was in fraud of creditors is no defense to an action for the specific performance of an agreement entered into subsequent to the fraudulent conveyance.

12. Enforcement of fraudulent mortgage.-The holder of a note and mortgage given to and received by him for the purpose of defrauding the mortgagor's creditors cannot enforce or foreclose the same, whether executed for a valuable consideration or not, since the law will not aid either party to the transaction.'

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N. C. 790, 36 S. E. 338; York v. Merritt, 77 N. C. 213.

8. C.-Harvin v. Weeks, 11 Rich. 601.

Tenn. Mulloy v. Young, 29 Tenn. 298.

Tex.-Davis v. Sittig, 65 Tex. 497, the fact that the contract may have been fully executed by one party furnishes no reason why the other should be compelled to execute his part, yet remaining executory.

W. Va.-Lowther Oil Co. v. MillerSibley Oil Co., 53 W. Va. 501, 44 S. E. 433, 97 Am. St. Rep. 1027.

Eng.-Leicester v. Rose, 4 East, 371, 1 Smith K. B. 41.

Compare Springer v. Drosch, 32 Ind. 486, 2 Am. Rep. 356, overruling

Welby v. Armstrong, 21 Ind. 489; Moore v. Meek, 20 Ind. 484, espe cially in favor of a third person to whom a promise, growing out of such transaction, had been made; Telford v. Adams, 6 Watts (Pa.), 429; Clemens v. Clemens, 28 Wis. 637, 9 Am. Rep. 520.

6. Payne v. Bruton, 10 Ark. 53. 7. Cone v. Cone, 118 Iowa, 458, 92 N. W. 665.

8. Dent v. Ferguson, 132 U. S. 50, 10 Sup. Ct. 13, 33 L. Ed. 242; Lynn v. Lyerle, 113 Ill. 128.

9. Ill.-Cook v. Meyers, 166 Ill. 282, 46 N. E. 765; Miller v. Marckle, 21 Ill. 152; Ellwood v. Walter, 103 Ill. App. 219.

Ind.-O'Kane v. Terrell, 144 Ind. 599, 43 N. E. 869.

Iowa.-Baldwin V. Davis, 118
Iowa, 36, 91 N. W. 778; Galpin v.
Galpin, 74 Iowa, 454, 38 N. W. 156.
Ky.-Jones v. Jenkins, 83 Ky. 391,
7 Ky. L. Rep. 408.
La.-Bowman v. McKleroy, 14 La.
Ann. 587.

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But the same may be enforced if the mortgagee can make out a prima facie case without disclosing any fraud, as the mortgagor will not be allowed to show his own fraud to defeat the instrument.10 It has been held, however, that the maker of a chattel mortgage made for the real purpose of defrauding his creditors, but ostensibly to secure a promissory note, may, when the mortgagee attempts to take the property from him, show the fraudulent character of such mortgage, and thereby defeat a seizure thereunder." A grantor cannot enforce a purchase money mortgage given to him for property conveyed in fraud of his creditors.12 Where a debtor, for the purpose of defrauding possible creditors, gives a note and mortgage to a creditor for an amount greater than his indebtedness, such creditor will not be prevented from bringing action on the note for the amount of his debt by the debtor's fraud, in which he did not participate.13

§ 13. Enforcement of trust for grantor in general.—Where a conveyance absolute in form is made to defraud creditors no

Mass.-Wearse v. Peirce, 41 Mass.

141.

Mich.-Williams V. Clink, 90 Mich. 297, 51 N. W. 453, 30 Am. St. Rep. 443. See Judge v. Vogel, 38

Mich. 569.

Minn.-Moffett v. Parker, 71 Minn. 139, 73 N. W. 850, 70 Am. St. Rep. 319.

N. C.-Bank of New Hanover v. Adrian, 116 N. C. 537, 21 S. E. 972.

Ohio.-McQuade v. Rosecrans, 36 Ohio St. 442.

Utah.-Schroeder V. Pratt, 21 Utah, 176, 60 Pac. 512.

Va.-Jones v. Comer, 5 Leigh, 350. Wash.-Puget Sound Hotaling Co. v. Clancy, 21 Wash. 1, 56 Pac. 929. Compare Blake v. Williams, 36 N. H. 39.

Contra.-Bradtfeldt v. Cooke, 27 Or. 194, 40 Pac. 1, 50 Am. St. Rep.

701, a mortgage given to secure a fictitious consideration for land conveyed by the mortgagee to the mortgagor in fraud of the former's creditors may be enforced against the mortgagor.

10. Barwick v. Moyse, 74 Miss. 415, 21 So. 238, 60 Am. St. Rep. 512; Millican v. Headon, Ont. 503, in an action on a covenant contained in a mortgage defendant cannot set up that the mortgage was to defraud creditors; Scoble v. Henson, 12 U. C. C. P. 65.

11. Galpin v. Galpin, 74 Iowa, 454, 38 N. W. 156.

12. Rowland v. Martin, 3 Pa. Cas. 162, 6 Atl. 223. See Bowman v. McKleroy, 14 La. Ann. 587.

13. Murphy v. Murphy, 74 Conn. 198, 50 Atl. 394.

resulting trust arises in favor of the fraudulent grantor or his heirs as against the grantee and they have no interest which can be asserted or enforced in law or equity." A secret trust will not be enforced in favor of a fraudulent grantor or his heirs, and in pursuance of the rule that parties to a conveyance in fraud of creditors will be left in the position in which they have placed themselves, equity will not grant relief to a fraudulent grantor or his heirs, etc., on the theory that the grantee holds the property thus conveyed in trust for his benefit, and no such trust will be recognized or implied in equity, unless the grantor

14. Robertson v. Sayre, 134 N. Y. 97, 31 N. E. 250, 30 Am. St. Rep. 627, aff'g 53 Hun (N. Y.), 490, 6 N. Y. Supp. 649; Heinz v. White, 105 Ala. 670, 17 So. 185; Burleigh v. White, 64 Me. 23; Lockren v. Rustan, 9 N. D. 43, 81 N. W. 60; Broughton v. Broughton, 4 Rich. (S. C.) 491.

15. U. S.-Kinney v. Consolidated Va. Min. Co., 14 Fed. Cas. No. 7,827, 4 Sawy. 382; Hunter v. Marlboro, 12 Fed. Cas. No. 6,908, 2 Woodb. & M. 168.

Ala.-Glover v. Walker, 107 Ala. 540, 18 So. 251; Smith v. Hall, 103 Ala. 235, 15 So. 525; Kelly v. Karsner, 72 Ala. 106; Patton v. Beecher, 62 Ala. 579; King v. King, 61 Ala. 479; Barntley v. West, 27 Ala. 542.

Ill.-Brady v. Huber, 197 Ill. 291, 64 N. E. 264, 90 Am. St. Rep. 161; Springfield Homestead Assoc. v. Roll, 137 Ill. 205, 27 N. E. 184, 31 Am. St. Rep. 358; McElroy v. Hiner, 133 Ill. 156, 24 N. E. 435; Kirkpatrick v. Clark, 132 Ill. 342, 24 N. E. 71, 22 Am. St. Rep. 531, 8 L. R. A. 511; Kassing v. Durand, 41 Ill. App. 93. Iowa.-Hayes v. March, 123 Iowa, 81, 98 N. W. 604.

Ky.-Grider v. Graham, 4 Bibb.

15

70; Bailey v. Cheatham, 4 Ky. L. Rep. 351.

Me.-Burleigh v. White, 64 Me. 23. Miss.-Hemphill v. Hemphill, 34 Miss. 68.

Neb.-Bartlett v. Bartlett, 13 Neb. 456, 14 N. W. 385.

N. J.-Conover v. Beckett, 38 N. J. Eq. 384; Servis v. Nelson, 14 N. J. Eq. 94.

N. C.-Guthrie v. Bacon, 107 N. C. 337, 12 S. E. 204. But see Smith v. 3 N. C. 229.

Ohio.-Robinson v. Robinson, 17 Ohio St. 480, although the property may have been acquired by the grantor after his insolvency or from resources which creditors might have been unable to make available. Pa.-Simons' Estate, 20 Pa. Super. Ct. 450.

Va.-Owen v. Sharp, 12 Leigh,

427.

Wash.-Chandler v. Hubbell, 34 Wash. 211, 75 Pac. 802.

W. Va.-McClintock v. Loisseau, 31 W. Va. 865, 8 S. E. 612, 2 L. R. A. 816.

Wis.-Fargo v. Ladd, 6 Wis. 106. Can.-Rosenburgher v. Thomas, 3 Grant Ch. (U. C.) 635.

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