nothing of any understanding that the mortgagor was to remain in possession, or of any purpose on the part of either party to defraud the mortgagor's creditors, is competent. And to repel any inference of fraud arising from the assignee of a mortgage leaving the mortgage in the mortgagee's possession, the mortgagee's testimony that, having contracted the debt and being acquainted with the mortgagor, he was better able to collect it, is admissible.

10

§ 41. Title to or control of property. In an action to reach property conveyed, as belonging to the grantor, for the purpose of showing or rebutting fraud in the conveyance, evidence of the grantor's conduct or statements after the conveyance while in possession as to his ownership of the property and tending to explain the character of his possession is admissible," but declarations made before the conveyance are not admissible.12 Statements by the party in possession of certain property that the business was his and only run in the name of another for protection are inadmissible on an issue of fraudulent transfer, as being something more than merely explanatory of the possession.13 In the trial of the right of property attached, the claimant may put in evidence the declaration of the defendant to the officer, at the time of the levy, that the property did not belong to him.1 Subject to the general rules of evidence, any fact tending to show whether or not there has been a change of possession of personal property sold is admissible; or, if the vendor has retained possession, any fact

9. Phifer v. Erwin, 100 N. C. 59, 6

S. E. 672.

10. Phifer v. Erwin, supra.

11. Loos v. Wilkinson, 110 N. Y. 195, 18 N. E. 99, 1 L. R. A. 260; Taylor Commission Co. v. Bell, 62 Ark. 26, 34 S. W. 80; Walcott v. Keith, 22 N. H. 196, declarations of the parties to the transfer, made after the contract and while the grantor is still in possession, are admissible; Askew v. Reynolds, 18 N. C. 367. Compare Demeritt v. Miles, 22 N. II. 523. And

see Waters v. Riggan, 19 Md. 536, conversations between the parties to the conveyance explanatory of the grantor's continued possession admissible.

12. Taylor Commission Co. v. Bell,

supra.

13. Sweet v. Wright, 57 Iowa, 510, 10 N. W. 870.

14. Wright v. Smith, 66 Ala. 514. 15. Snodgrass v. Branch Bank, 25 Ala. 161, 60 Am. Dec. 505; Springer v. Kruger, 3 Colo. App. 487, 34 Pac.

explaining his possession is admissible to rebut the inference of fraud arising therefrom.16

§ 42. Retention or change of apparent title or control.— Where property has been or is about to be subjected as belonging to the grantor, any facts or circumstances which tend, under the general rules of evidence, to show whether the grantor or another has had the apparent title to or exercised control or management over the property since the conveyance is admissible, as bearing on the bona fides of a claimant's title to the property." Evidence is admissible that the grantor subsequent to the conveyance used, disposed of, or otherwise treated the property as his own,' or that the grantee did so, or that the grantee replenished a stock of goods, which was the subject of the transfer, with his own money or on his own credit.20 Evidence that after a sale the property sold was taxed to the vendor, with his knowledge and without.

269; Rule v. Bolles, 27 Or. 368, 41 Pac. 691.

16. Easley v. Dye, 14 Ala. 158; Laird v. Davidson, 124 Ind. 412, 25 N. E. 7; Foley v. Knight, 4 Blackf. (Ind.) 420; Benjamin v. McElwaineRichards Co., 10 Ind. App. 76, 37 N. E. 362; Seavey v. Dearborn, 19 N. H. 351; Harrell v. Elliott, 1 N. C. 86. 17. Cal.-Freeman V. Hensley (1892), 30 Pac. 792. Colo.-Butler v. Howell, 15 Colo. 249, 25 Pac. 313. Ky.-Kendall v. Hughes, 46 Ky.

368.

Mich.-Partlow V. Swigart, 90 Mich. 61, 51 N. W. 270.

Minn.-Christian V. Klein, 77 Minn. 116, 79 N. W. 602; Laib v. Brandenburg, 34 Minn. 367, 25 N. W. 803; Ladd v. Newell, 34 Minn. 107, 24 N. W. 366.

Mo.-Franklin v. Gummersell, 11 Mo. App. 306.

18

N. H.-Blake v. White, 13 N. H. 267.

Pa.-Helfrich v. Stem, 17 Pa. St.

143.

Tex.-See O'Neal v. Clymer (Tex. Civ. App. 1900), 61 S. W. 545.

S. C.-Owens v. Gentry, 30 S. C. 490, 9 S. E. 525.

18. N. Y.--Persse, etc., Paper Works v. Willett, 1 Rob. 131.

U. S.-McClellan v. Pyeatt, 50 Fed. 686, 4 U. S. App. 319, 1 C. C. A. 613.

Md.-Cecil Bank v. Snively, 23 Md.

253.

Mo.-Blue v. Penniston, 27 Mo. 272. Neb.-Cox v. Einspahr, 40 Neb. 411, 58 N. W. 941.

19. Shealy v. Edwards, 75 Ala. 411; Martin v. Duncan, 181 Ill. 120, 54 N. E. 908, aff'g 79 Ill. App. 527.

20. Butler v. Howell, 15 Colo. 249, 25 Pac. 313; Helfrich v. Stein, 17 Pa. St. 143. Compare Flood v. Clemence, 106 Mass. 299.

23

objection, is admissible as tending to show that the conveyance was fraudulent. So evidence is admissible that after the conveyance the grantee did not return the property for taxation,22 or that property mortgaged was not taxed to the mortgagor after the execution of the mortgage." But evidence as to whether the grantee of personal property gave in to the assessor the realty on which the personalty was as his property is properly excluded." The payment of taxes on land by one in possession, who was also the owner of an undivided half interest therein, is not evidence of the bona fides of the deed from his co-tenant for the other half, under which he holds.25

§ 43. Weight and sufficiency of evidence generally.-A fair preponderance of evidence is sufficient to establish fraud in a conveyance attacked by creditors, and the degree of certainty demanded in criminal cases is not required.26 There is nothing in

21. Judge v. Vogel, 38 Mich. 569; Lamprey v. Donacour, 58 N. H. 376. Compare Woodman v. Clay, 59 N. H. 53; O'Neal v. Clymer (Tex. Civ. App. 1900), 61 S. W. 545. But see Eherke v. Hecht, 96 Iowa, 96, 64 N. W. 652. 22. Shober v. Wheeler, 113 N. C. 370, 18 S. E. 328.

23. Osborn v. Ratliff, 53 Iowa, 748, 5 N. W. 746.

24. Asbill v. Standley (Cal. 1892), 31 Pac. 738.

25. Traverse v. Tate, 82 Cal. 170, 22 Pac. 1082.

26. N. Y.-Saugerties Bank V. Mack, 35 App. Div. 398, 54 N. Y. Supp. 950; Howe v. Sommers, 22 App. Div. 417, 48 N. Y. Supp. 162.

Ill-American Hoist, etc., Co. v. Hall, 208 Ill. 597, 70 N. E. 581, aff'g 110 Ill. App. 463; Carter v. Gunnels, 67 Ill. 270.

Ind.-Laird v. Davidson, 124 Ind. 412, 25 N. E. 7, distinguishing Rowell v. Klein, 44 Ind. 291.

Iowa.-Doxsee V. Waddick, 122. Iowa, 599, 98 N. W. 483; Russell v. Huiskamp, 77 Iowa, 727, 42 N. W. 525; McCreary v. Skinner, 75 Iowa, 411, 39 N. W. 674; Bixby v. Carskaddon, 55 Iowa, 533, 8 N. W. 354.

La.-Bridgeford v. Simonds, 18 La. Ann. 121.

Mich. Gumberg v. Trensch, 103 Mich. 543, 61 N. W. 872; Hough v. Dickinson, 58 Mich. 89, 24 N. W. 809.

Mo.-Boon County Nat. Bank v. Newkirk, 144 Mo. 472, 46 S. W. 606.

Ohio. Dougherty v. Schlotman, 1 Cinc. Super. Ct. 292; Rine v. Hall, 187 Pa. St. 264, 40 Atl. 1088; Meyers v. Meyers, 24 Pa. Super Ct. 603.

S. C.-McGee v. Wells, 52 S. C. 472, 30 S. E. 602.

Tex.-Schmick v. Noel, 72 Tex. 1, 8 S. W. 83.

the nature or improbability of fraud towards creditors which calls for a greater quantity of proof to establish it than that which is required to establish a fact in any civil action." The proof need not establish fraud beyond all doubt.28 But the jury are not permitted to guess or suspect, or presume fraud, but must find it from the evidence, as they would any other fact.29 Fraud as to creditors must be proved as an affirmative fact by clear and satisfactory evidence. It is a well established principle of law that fraud will not be presumed, but must be proved, and the proof must be of such a positive and definite character as to convince the mind of the court. If there is a doubt about it the presumption of innocence should prevail, and evidence as consistent with innocence as with wrongdoing is insufficient to prove fraudulent intent.3 Cases are cited for reference in the notes below where the evidence was held to be sufficient to warrant the setting aside of the convey

W. Va.-Knight v. Nease, 53 W. Va. 50, 44 S. E. 414; Vandervort v. Fouse, 52 W. Va. 214, 43 S. E. 112.

27. Skipper v. Reeves, 93 Ala. 332, 8 So. 804; Bowman v. Ash, 143 Ill. 649, 32 N. E. 486, aff'g 36 Ill. App. 115.

28. Jones v. Lossiter, 29 Ky. L. Rep. 514, 93 S. W. 657; Wiggington v. Minter, 28 Ky. L. Rep. 79, 88 S. W. 1082.

29. Schroeder v. Walsh, 120 Ill. 403, 11 N. E. 70, aff'g 16 Ill. App. 590.

30. Huber v. Wiman, 18 Misc. Rep. 107, 41 N. Y. Supp. 834; Hildreth v. Sands, 2 Johns. Ch. 35.

U. S.-Foster v. McAlester, 114 Fed. 145, 52 C. C. A. 107.

Ala.-Allen v. Riddle (1904), 37 So. 680.

Ill.-Eickstaedt v. Moses, 105 Ill. App. 634.

Ind.-American Varnish Co. Reed, 154 Ind. 88, 55 N. E. 224.

V.

Iowa. Shumaker v. Davidson, 116

30

Mich.-Pogodzinski v. Kruger, 44 Mich. 79, 6 N. W. 116.

Minn.-Aretz v. Kloos, 89 Minn. 432, 95 N. W. 216, 769. Miss.-McInnis v. Wiscassett Mills, 78 Miss. 52, 28 So. 725.

Mo.-Farmers' Bank v. Worthington, 145 Mo. 91, 46 S. W. 745; Robinson v. Dryden, 118 Mo. 534, 24 S. W. 448; Chapman v. McIlwrath, 77 Mo. 38, 46 Am. Rep. 1; Dallam v. Renshaw, 26 Mo. 533.

S. C.-Clark v. Bailey, 2 Strob. Eq. 143.

Va.-Taylor v. Mallory, 96 Va. 18, 30 S. E. 472.

Wash.-Rohrer v. Snyder, 29 Wash. 199, 69 Pac. 748..

ance on the ground of fraud,31 and other cases where the evidence was held insufficient to establish fraud in the conveyance.

844. Circumstantial evidence.-Fraud may be established as well by circumstantial, as by direct evidence. A conveyance by a debtor may be shown by circumstances attending the transaction. to be fraudulent.33 Fraud may be legally inferred from facts and