indebtedness of the grantor at the time he made the transfer is material and admissible," and the exclusion of evidence tending to show such indebtedness constitutes reversible error.18 Whenever the financial condition of the debtor is material, any evidence which throws light on it at the time of the conveyance in question is admissible, as, for example, the grantor's liability as an accommodation indorser, though the note was not then dishonored.20 But the evidence offered to prove the indebtedness must have a legitimate tendency to establish the fact. Evidence that, prior to the conveyance, a lawyer had a claim for collection against the debtor, is inadmissible, since it does not follow that he owed the claim." To prove the indebtedness of the grantor at the time of the execution of a deed alleged to be void as to creditors, his notes for the payment of money, due previous to that period, are admissible evidence.22 Records of judgments rendered against a debtor before and shortly after the conveyance are competent and admissible to show his indebtedness at the time of the conveyance," and it is immaterial that the grantee was not a party to the actions in which the judgments were obtained.24 In an action against the grantor and grantee to set aside a deed as in fraud of creditors, it is proper to admit evidence of the grantor's circumstances, where the court expressly limits the effect thereof to the grantor.25 Where the judgment of the attacking creditor was rendered after the alleged fraudulent conveyance, evidence that the grantor did not owe plain

17. Hinde v. Longworth, 24 U. S. 199, 6 L. Ed. 454; Smith v. Collins, 94 Ala. 394, 10 So. 334; Stewart v. Fenner, 81 Pa. St. 177; Helfrich v. Stem, 17 Pa. St. 143; Mills v. Howeth, 19 Tex. 257, 70 Am. Dec. 331.

18. Buckingham v. Tyler, 74 Mich. 101, 41 N. W. 868.

19. Smith v. Collins, 94 Ala. 394, 10 So. 334.

20. Hamet v. Dundass, 4 Pa. St.

178.

21. Clark V. Chamberlain, 95 Mass. 257.

22. High v. Nelms, 14 Ala. 350. 23. Hinde v. Longworth, 24 U. S. 199, 6 L. Ed. 454; Hardy v. Moore, 62 Iowa, 65, 17 N. W. 200; Meyberg v. Jacobs, 40 Mo. App. 128; McMichael v. McDermott, 17 Pa. St. 353, 55 Am. Dec. 560.

24. Hinde v. Longworth, supra. 25. Carver v. Barker, 73 Hun (N. Y.), 416, 26 N. Y. Supp. 919.

And any

tiff anything at the time of the sale is relevant.26 testimony which shows that the grantor had, or supposed he had, at the time of the execution of the conveyance, claims against the creditor sufficient to meet the demand of the creditor against him, notwithstanding no claim of offset was made by the grantor at the time the creditor recovered his judgment against him, has a direct tendency to rebut the presumption of any fraudulent intent in the grantor to avoid the rights of that creditor.27

30

§ 31. Solvency or insolvency of grantor.--Evidence of the general reputation of the insolvency of the grantor is admissible,28 as well as the general reputation of the grantee as to pecuniary responsibility, on the issue as to whether a conveyance is fraudulent as to creditors. To determine the validity of a conveyance as against creditors, every circumstance tending to show the pecuniary condition of the grantor at the time of such conveyance is admissible, but evidence as to what the negotiable paper of a firm was offered for by brokers without the firm's knowledge pending the organization of a corporation is inadmissible to show the insolvency of the firm." Evidence of the return of an execution against the grantor unsatisfied is admissible for the purpose of showing the grantor's insolvency.3 The records in attachment suits are admissible in evidence as tending to show the debtor's insolvency at the time of the con

26. Finch v. Kent, 24 Mont. 268, 61 Pac. 653. See Hoerr v. Meihofer, 77 Minn. 228.

27. Warner v. Percy, 22 Vt. 155. 28. Webb v. Atkinson, 124 N. C. 447, 32 S. E. 737. And see Cook v. Mason, 87 Mass. 212.

29. Sweetser v. Bates, 117 Mass. 466.

30. Lane v. Kingsberry, 11 Mo. 402.

31. Persse, etc., Paper Works v.

Willett, 24 N. Y. Super Ct. 131. See Nixon v. Goodwin (Cal. 1906), 85 Pac. 169, evidence as to the value of stock of another company, held by a corporation, a year prior to the conveyance, is inadmissible to prove the solvency of the corporation at the time of an alleged fraudulent conveyance by it to its president.

32. Fuller v. Brown, 76 Hun (N. Y.), 557, 28 N. Y. Supp. 189; Fryberger v. Berven, 88 Minn. 311, 92 N. W. 1125.

35

40

34

38

veyance.33 The debtor's books of account, and tax lists made out by the debtor, are admissible for that purpose. Evidence that the checks of a firm were dishonored by the banks on which they were drawn,36 that, prior to the conveyance alleged to be fraudulent, a lawyer, who had a claim for collection against the debtor, on inquiry could find no property attachable,” that the grantor had notes outstanding at the time of the conveyance and a judgment had been rendered on one of such notes, evidence of the register of deeds that he had found that there was no other property standing in the name of the debtor,39 proof that the remainder of the debtor's property had been sold on judgments without satisfying his debts, and that shortly after the sale a large amount of judgments were obtained against the debtor for debts due before the sale," evidence that at the time of the conveyance the property was under actual attachment, though by reason by a defect in the service it created no lien,42 is admissible to show the insolvency of the debtor. The fact that the grantor's executor had petitioned for the sale of the grantor's real estate on account of an alleged deficiency of personal assets is admissible evidence to show insolvency of the grantor, at the time of the making of a voluntary conveyance." Where, however, the insolvency of the grantor is not seriously disputed, the admission of proof of judgments against him, recovered after the commencement of an action to set his conveyance aside, is error as

43

38. Beeson v. Wiley, 28 Ala. 575. 39. Bristol County Sav. Bank v. Keavy, 128 Mass. 298.

40. Helfrich v. Stem, 17 Pa. St. 143.

41. Helfrich v. Stem, supra. See Nixon v. Goodwin (Cal. App. 1906), 85 Pac. 169.

42. Stamford Bank v. Ferris, 17 Conn. 259.

43. Manhattan Co. v. Osgood, 15 Johns. (N. Y.) 162, rev'd on other grounds 3 Cow. (N. Y.) 612, 15 Am. Dec. 304.

to the grantee." Evidence that the debtor, several months previous to the conveyance, obtained an extention of his notes about to fall due by representations that he would be unable to pay them at maturity, is admissible as tending to prove that he knew himself to be insolvent at the time of the conveyance." 45 But evidence of the value of a tract of land adjoining that retained by the donor in a deed of gift is incompetent to show that he did not retain property fully sufficient and available to satisfy existing debts.46

§ 32. Consideration in general.-To prove consideration, the grantee is not confined to proof of such of his transactions with the grantor as occurred in the presence of the attacking creditors." As a general rule, the sufficiency or insufficiency of the consideration for a conveyance or transfer alleged to be fraudulent as to creditors may be shown by any evidence tending to establish the facts which is material and competent under the general rules of evidence.48 Evidence held admissible to show

47. Fleming v. Yost, 137 Ind. 95, 36 N. E. 705.

48. N. Y.-Lawrence Bros. v. Heylman, 111 App. Div. 848, 98 N. Y. Supp. 121; Knoch v. Bernheim, 14 App. Div. 410, 43 N. Y. Supp. 926; Gilmore v. Ham, 55 Hun, 613, 10 N. Y. Supp. 48.

Ala.-McLendon v. Grice, 119 Ala. 513, 24 So. 846.

Conn.-Lesser v. Brown, 75 Conn. 491, 54 Atl. 205.

Ind.-Vansickle v. Shenk, 150 Ind. 413, 50 N. E. 381.

Iowa.-Price v. Mahoney, 24 Iowa,

582.

Mich.-Ismond V. Scougale, 120 Mich. 353, 79 N. W. 489; Jansen v. McQueen, 112 Mich. 254, 70 N. W. 552.

Mo.-Stam v. Smith, 183 Mo. 464, 81 S. W. 1217.

Neb.-Karll v. Kuhn, 38 Neb. 539, 57 N. W. 379.

N. J.-Claflin v. Freudenthal, 58 N. J. Eq. 298, 43 Atl. 529, aff'd 50 N. J. Eq. 483, 46 Atl. 1100.

Pa.-Heath v. Slocum, 115 Pa. St. 549, 9 Atl. 259; Baltimore, etc., R. Co. v. Hoge, 34 Pa. St. 214.

Tex.-Barnes v. Krause (Civ. App. 1899), 53 S. W. 92.

consideration, and evidence held inadmissible," may be found in the cases cited in the notes below. For the purpose of establishing a consideration and the bona fide character of the transaction, evidence of the payment or assumption by the grantee of an indebtedness or liability on the part of the grantor may likewise be material and admissible.50 In the same way evidence tending to establish or negative a pre-existing indebtedness or liability on the part of the grantor to the grantee, which is relied upon as constituting the consideration for the conveyance or transfer attacked as fraudulent as to creditors, is admissible.51 But evidence of a pre-existing indebtedness is properly excluded where it does not appear that it was in any way connected with the consideration expressed in the conveyance sought to be set aside,52 and the fact that a portion of the indebtedness was barred by limitations is admissible in evidence, to be considered on the

49. Nixon v. Goodwin (Cal. App. 1906), 85 Pac. 169; Morse v. Powers, 17 N. H. 286; Hinson v. Walker, 65 Tex. 103; Voorheis v. Waller (Tex. Civ. App. 1896), 35 S. W. 807.

50. N. Y.-Merchants' Bank V. Thalheimer, 50 Hun, 600, 2 N. Y. Supp. 328.

Ala.-Howell v. Bowman, 99 Ala. 100, 10 So. 640; Watson v. Tool, 36

Ala. 13.

Ind.-McCormick

V. Smith, 127 Ind. 230, 26 N. E. 825.

Md.-Waters v. Riggin, 19 Md. 536. N. C.-Watts v. Warren, 108 N. C. 514, 13 S. E. 232.

51. N. Y.-Knoch v. Bernheim, supra; Goldenson v. Lawrence, 15 Misc. Rep. 489, 37 N. Y. Supp. 194, aff'd 16 Misc. Rep. 570, 38 N. Y. Supp. 99; Gilmore v. Ham, supra.

Ala.-Clewis v. Malone, 119 Ala. 312, 24 So. 767.

Cal.-Byrne v. Weed, 75 Cal. 277, 17 Pac. 201.

Conn.-Trumbull

V. Hewitt, 65 Conn. 60, 31 Atl. 492; Cowles v. Coe, 21 Conn. 220.

Iowa.-Conry v. Benedict (1898), 76 N. W. 840; Bussard v. Bullitt, 95 Iowa, 736, 64 N. W. 658.

Md. Stockbridge v. Fahnstock, 87 Md. 127, 39 Atl. 95.

Mass.-Knowlton v. Moseley, 105 Mass. 136.

Mich.-Winfield v. Adams, 34 Mich. 437; Sweetzer v. Mead, 5 Mich. 107. N. J.-Claflin V. Freudenthal, supra.

N. C.-Allen v. McLendon, 113 N.
C. 321, 18 S. E. 206.
Pa.-Connelly v. Walker, 45 Pa. St.

449.

Tex.-Barnett v. Vincent, 69 Tex. 685, 7 S. W. 525, 5 Am. St. Rep. 98; Cooper v. Sawyer, 31 Tex. Civ. App. 620, 73 S. W. 992; Wright v. Soloman (Civ. App. 1898), 46 S. W. 58.

52. Rousseau v. Bleau, 60 Hun (N. Y.), 259, 14 N. Y. Supp. 712.