9

evidence offered by him. The fact that a mother was indebted to her son, at the time of giving him a deed voluntary upon its face, is not sufficient in the absence of other evidence, to show that it was given in payment of the debt.10 Where the consideration of a conveyance or transfer by a husband to his wife is alleged to be an antecedent debt of the husband to his wife, if the validity of the indebtedness is questioned by creditors, the proof thereof need only be clear and satisfactory." The rule which requires proof in support of a wife's claim of title as against her husband's creditors to be clear, convincing and indubitable, applies to cases in which specific property is claimed, the title to which is involved in doubt.12 Cases in which the evidence has been held sufficient to show that the relation of debtor and creditor existed between husband and wife and to establish the existence of a debt which could be regarded as a consideration for the conveyance,13 and cases in which the evidence has been held insufficient to establish such indebtedness from husband and wife," are cited in the notes below. Where

County Bank v. Gailey, 177 Mo. 181, 75 S. W. 646.

9. Colston V. Miller (W. Va. 1904), 47 S. E. 268; Graham v. O'Keefe, 16 Ir. Ch. 1.

10. Jackson v. Lewis, 34 S. C. 1, 12 S. E. 560.

11. Rine v. Hall, 187 Pa. St. 264, 40 Atl. 1088; Binson v. Maxwell, 105 Pa. St. 274.

12. Rine v. Hall, supra.

13. N. Y.-Willis v. Willis, 79 App. Div. 9, 79 N. Y. Supp. 1028; Birdsall, etc., Mfg. Co. v. Schwartz, 26 App. Div. 343, 49 N. Y. Supp. 782; Ellis v. Myers, 4 Silv. Sup. 323, 8 N. Y. Supp. 139.

Ala.-Seasongood v. Ware, 104 Ala. 212, 16 So. 51; Murray v. Heard, 103 Ala. 400, 15 So. 565.

Iowa. Muir v. Miller, 103 Iowa, 127, 72 N. W. 409; Gilbert v. Glenny,

75 Iowa, 513, 39 N. W. 818, 1 L. R. A. 479.

Mich.-Hicks

V. McLachlan, 94 Mich. 278, 53 N. W. 1107; Dull v. Merrill, 69 Mich. 49, 36 N. W. 677.

N. J.-Dresser v. Zabriskie (Ch. 1898), 39 Atl. 1066; Minzesheimer v. Doolittle, 56 N. J. Eq. 206, 39 Atl. 386.

14. N. Y.-Clinton Bank v. Collignon, 83 Hun, 467, 31 N. Y. Supp. 1116, 24 Civ. Proc. R. 279.

Ala.-Robert Graves Co. v. MeDade, 108 Ala. 420, 19 So. 86; Wedgworth v. Wedgworth, 84 Ala. 274, 4 So. 149.

Ga.-Booher v. Worrill, 57 Ga. 235. Ill.-Wesselhoeft v. Cudahy Packing Co., 44 Ill. App. 128.

Iowa.-Letz v. Smith, 94 Iowa. 301, 62 N. W. 745; Jons v. Campbell, 84 Iowa, 557, 51 N. W. 37; Iowa City

15

a husband and wife are the only witnesses in a suit to set aside a transfer made by the husband to his wife, and both testify that the transfer was made in payment of a pre-existing debt, and that the value of the property does not exceed such debt, it has been held that the transfer must stand, although there are some suspicious circumstances. On the contrary it has been held that, as against her husband's creditors seeking to set aside a conveyance to his wife, a debt from him cannot be proved by the uncorroborated testimony of the husband and wife.16 The fact that compound interest is added to such a debt according to agreement does not show fraud." The fact that an unusually right rate of interest is added to the principal may, however, be considered by the jury in determining the bona fides of the debt.18 On the issue of the validity, as against creditors of a husband, of a post-nuptial settlement alleged to have been made pursuant to an ante-nuptial agreement, declarations of the husband, made during coverture, are not sufficient to establish such agreement.19 That a conveyance of lands by a debtor to his wife was in consideration of prior loans by her to him, and therefore valid as against other creditors, is not necessarily disproved by the want of any written evidence of, or any obligation to repay, the debt.20

§ 52. Intent of grantor to defraud creditors.-The fraudulent intent of a debtor in making a conveyance or transfer of

Bank v. Weber, 72 Iowa, 137, 33 N.
W. 606; Eisfeld v. Dill, 71 Iowa, 442,
32 N. W. 420; Triplett v. Graham, 58
Iowa, 135, 12 N. W. 143.

Ky.-Carter v. Strange, 12 Ky. L.
Rep. 642, 14 S. W. $37.

Mich.-Felker v. Chubb, 90 Mich. 24, 51 N. W. 110; Keam v. Conkwright, 78 Mich. 58, 43 N. W. 1093. Pa.-Sweeting v. Sweeting, 172 Pa. St. 161, 33 Atl. 543.

Va.-McConville v. National Valley Bank, 98 Va. 9, 34 S. E. 891.

15. Farmers' Nat. Bank v. Warner, 68 Iowa, 147, 26 N. W. 47.

16. Sanford v. Allen (Tenn. Ch. App. 1897), 42 S. W. 183.

17. Frost v. Steele, 46 Minn. 1, 48 N. W. 413.

18. Hollis v. Rodgers, 106 Ga. 13, 31 S. E. 783.

19. Satterthwaite v. Emley, 4 N. J. Eq. 489, 43 Am. Dec. 618.

20. Allen v. Antisdale, 38 Mich. 229.

his property may be gathered from the instrument of conveyance or transfer, from the acts of the parties, and from the surrounding circumstances, and need not necessarily be proven as an independent fact.21 The fraudulent intent of the debtor must be established by a preponderance of evidence. The quality and weight of evidence must be satisfactory. The evidence must be sufficiently strong and cogent to satisfy a person of sound judgment of the truth of the charge that the conveyance was made with intent to defraud creditors. The facts must naturally and logically indicate fraud and must be of a character to warrant the inference, and it should not be left to mere inference from suspicious circumstances.22 It is unnecessary that

21. N. Y.-Kain v. Larkin, 131 N. Y. 300, 31 N. E. 105, rev'g 62 Hun, 621, 17 N. Y. Supp. 223; Continental Nat. Bank v. Moore, 83 App. Div. 419, 82 N. Y. Supp. 302; Gould Paper Co. v. Frank, 56 N. Y. Supp. 747.

Ga.-Cohen v. Parish, 100 Ga. 335, 28 S. E. 122.

Ill.-Bowden v. Bowden, 75 Ill. 143. Iowa.-Doxsee v. Waddick (1904), 98 N. W. 110; Davenport v. Cummings, 15 Iowa, 219.

Ky.-Huffman v. Leslie, 23 Ky. L. Rep. 1981, 66 S. W. 822.

Md.-Baltimore High Grade Brick Co. v. Amos, 95 Md. 571, 52 Atl. 582, 53 Atl. 148; Zimmer v. Miller, 64 Md. 296, 1 Atl. 858; Powles v. Dilley, 2 Md. Ch. 119; Stewart v. Union Bank, 2 Md. Ch. 58.

Mich.-Scandinavian Sveas Benev. Soc. v. Linquist, 133 Mich. 91, 94 N. W. 592; Smith v. Brown, 34 Mich. 455.

Minn. Nichols, etc., Co. V. Gerlich, 84 Minn. 483, 87 N. W. 1120; Benson v. Nash, 75 Minn. 341, 77 N. W. 991; Hicks v. Stone, 13 Minn. 434; Blackman v. Wheaton, 13 Minn. 326.

W. Va.-Vandervort v. Fouse, 52 W. Va. 214, 43 S. E. 112; Reynolds v. Gorthorp, 37 W. Va. 3, 16 S. E. 364; Hunter v. Hunter, 10 W. Va. 321; Lockhard v. Beckley, 10 W. Va. 87.

22. Carter v. Meisch, 63 Hun (N. Y.), 635, 18 N. Y. Supp. 604; Robinson v. Von Doleke, 3 Ohio Dec. 107, 1 Ohio N. P. 429.

Evidence held sufficient.-N. Y. -New York County Nat. Bank v. American Surety Co., 174 N. Y. 544, 67 N. E. 1086; Walworth Mfg. Co. v. Burton, 82 App. Div. 637, 81 N. Y. Supp. 873; Carver v. Barker, 73 Hun, 416, 26 N. Y. Supp. 919.

U. S.-Watson v. Bonfils, 116 Fed. 157, 53 C. C. A. 535.

Ariz. - Roundtree (1899), 59 Pac. 109.

V. Marshall

the fraudulent intent be proven beyond doubt, but it is enough if a case of reasonable probability be established, not readily explanable on any other hypothesis.23 Stronger evidence of fraudulent intent is required to avoid a sale alleged to have been made to defraud subsequent creditors than in the case of existing creditors.24 A voluntary conveyance by one indebted at the time is presumptively fraudulent and is prima facie evidence of a fraudulent intent,25 and where the facts and circumstances are such as to make a prima facie case of an intent to hinder, delay, or defraud creditors, they are to be taken as conclusive evidence of

Cal.-Banning v. Marleau, 133 Cal. 485, 65 Pac. 964.

Ind.-Dart v. Stewart, 17 Ind. 21; Ruffing v. Tilton, 12 Ind. 259.

Iowa. Kerr v. Kennedy, 119 Iowa, 239, 93 N. W. 353.

Ky.-Arnold v. Eastin, 116 Ky. 686, 76 S. W. 855, 25 Ky. L. Rep. 895. Mo.-Allen v. Berry, 40 Mo. 282; New York Store Mercantile Co. v. West, 107 Mo. App. 254, 80 S. W. 923.

Neb.-Bokhoof v. Stewart, 2 Nebr. (Unoff.) 714, 89 N. W. 759.

N. J.-Gardner v. Kleinke, 46 N. J. Eq. 90, 18 Atl. 457.

8. D.-Probert v. McDonald, 2 S. D. 495, 51 N. W. 212, 39 Am. St. Rep. 796.

Evidence held insufficient.-N. Y.-Van Slyck v. Woodruff, 118 App. Div. 47, 103 N. Y. Supp. 139, transfer of property of a corporation; Castleman v. Mayer, 55 App. Div. 515, 67 N. Y. Supp. 229; Perry v. Bedell, 59 Hun, 619, 13 N. Y. Supp. 487.

U. S.-Micou v. First Nat. Bank, 104 U. S. 530, 26 L. Ed. 834; Atlas Nat. Bank v. Abram French Sons Co., 123 Fed. 746.

Ark.-Blass v. Goodbar, 65 Ark. 511, 47 S. W. 630; Fly v. Screeton, 64 Ark. 184, 41 S. W. 764.

Ky.-Hanson v. Power, 38 Ky. 91. Mass.-Winchester v. Charter, 94 Mass. 606.

Minn.-Donahue v. Campbell, 81 Minn. 107, 83 N. W. 469; Lathrop v. Clayton, 45 Minn. 124, 47 N. W. 544. Mo.-Stead v. Mahon, 70 Mo. App. 400. N. J.-Waln v. Hance, 35 N. J. Eq. 660, 32 Atl. 169, 35 Atl. 1130.

N. C.-Guggenheimer v. Brookfield, 90 N. C. 232.

S. C.-Sloan v. Hunter, 56 S. C. 385, 34 S. E. 658, 879, 76 Am. St. Rep. 551; Gentry v. Lannean, 54 S. C. 514, 32 S. E. 523, 71 Am. St. Rep. 814.

23. Vandervort v. Fouse, 52 W. Va. 214, 43 S. E. 112.

24. Zeliff v. Schuster, 31 Mo. App. 493. Compare Hunter v. Hunter, 10 W. Va. 321.

25. Smith v. Reid, 134 N. Y. 568, 31 N. E. 1082, aff'g 11 N. Y. Supp. 1139, 19 Civ. Proc. R. 363; Bullett v. Worthington, 3 Md. Ch. 99.

such intent, in the absence of any explanation thereof or unless rebutted by other facts and circumstances.26 The intrinsic evidence of an intention to hinder, and delay creditors by a conveyance of property consumable in the use is repelled by a reservation of the rights of creditors to the property conveyed." Although a party may testify as to the intent with which he made an alleged fraudulent transfer, yet such testimony is not conclusive, and does not necessarily outweigh the evidence of facts and circumstances tending to contradict such negative testimony.28 The court will regard professions of good faith and denials of fraud by the parties to the transaction impeached as but their own estimate of their conduct, which cannot relieve them from showing a reasonable and just explanation of the facts." The fact that, in a suit to set aside a fraudulent conveyance, the testimony of one of the defendants, who was a party to the conveyance, tending to show that it was without fraudulent intent is not believable, is not a circumstance from which such intent can be found.30

§ 53. Knowledge and intent of grantee or purchaser from grantee. The general rules as to the weight and sufficiency of evidence apply, in actions to set aside a fraudulent conveyance, to evidence offered to prove that the grantee had knowledge or notice of the grantor's fraudulent intent,31 or that he participated

26. Smith v. Reid, supra; Parker v. Valentine, 27 W. Va. 677; Livesay v. Beard, 22 W. Va. 585.

27. Hunter v. Foster, 23 Tenn. 211.

28. Chalmers v. Sheehy, 132 Cal. 459, 64 Pac. 709, 84 Am. St. Rep. 62; Gardner v. Kreinke, 46 N. J. Eq. 90, 18 Atl. 457; Bleiler v. Moore, 99 Wis. 486, 75 N. W. 953.

29. Pickett v. Pipkin, 64 Ala. 520. 30. Kalish v. Higgins, 175 N. Y. 495, 67 N. E. 1084, aff'g 70 App. Div. 192, 75 N. Y. Supp. 397.

31. V. Y.-Pollock v. Van Camp, 74 Hun, 332, 26 N. Y. Supp. 231.

U. S.-Sonnentheil V. Christian Moerlein Brewing Co., 172 U. S. 401, 19 Sup. Ct. 233, 43 L. Ed. 492, aff'g 75 Fed. 350, 21 C. C. A. 390; In re Hines, 16 Am. B. R. 495, 144 Fed. 543; Parker v. Black (U. S. D. C. N. Y.), 16 Am. B. R. 202, 143 Fed. 560; Erdhouse v. Hickenlooper, 9 Fed. Cas. No. 4,509, 2 Bond, 392.

Ala.-Allen v. Riddle (1904), 37 So. 680; Norwood v. Washington, 136 Ala. 657, 33 So. 869; Mary Lee Coal.