therein,32 and plaintiff must establish by a preponderance of evidence, not only the fraudulent intent of the grantor, but also the knowledge of that intent by the grantee, or that he participated therein. Evidence as to the good faith of a purchaser from

the grantee is also subject to the same general rules.33 Fraudulent intent in a purchaser of property from a debtor need not be proven by positive evidence, but may be inferred from the facts and circumstances surrounding the entire transaction.34 Where the circumstances connected with a conveyance fraudulent as to the grantor plainly establish the complicity of the grantee in the fraudulent intent, it is not necessary to show by direct and positive proof notice to the grantee of such intent. Mere suspicion, however, in the minds of the jury that the grantee purchased with knowledge of the debtor's fraudulent intent is not sufficient to justify a verdict against his title, as fraud must always be distinctly proved by a clear preponderance of testimony.36 Where it is shown that the purchaser of property had no knowledge of the existence of a judgment against the seller,

Mo.-Stokes v. Burns, 132 Mo. 214, 33 S. W. 460; Thompson v. Cohen (1894), 24 S. W. 1023.

Pa. Ferry v. McKenna, 9 Pa. Co. Ct. 17.

Tenn. Hendly v. Hendly, (Ch. App. 1897), 46 S. W. 1016.

Vt.-Eaton v. Cooper, 29 Vt. 444. Va.-Johnson v. Lucas, 103 Va. 36, 48 S. E. 497.

W. Va.-Colston v. Miller, 55 W. Va. 490, 47 S. E. 268.

Wis.-Mehlhop

V. Pettibone,

54

Wis. 652, 11 N. W. 553, 12 N. W. 443. 33. Fults v. Paul, 63 Hun (N. Y.), 635, 18 N. Y. Supp. 524; Freiburg v. Dreyfus, 135 U. S. 478, 10 Sup. Ct. 716, 34 L. Ed. 206, aff'g 26 Fed. 824; Pease v. Bridge, 49 Conn. 58; Throckmorton v. Rider, 42 Iowa, 84.

34. N. Y.-Gowing v. Warner, 30 Misc. Rep. 593, 62 N. Y. Supp. 797.

Md.-Dawson v. Waltemeyer, 91 Md. 328, 46 Atl. 994; Cooke v. Cooke, 43 Md. 522.

Mo.-Fredrick v. Allgaier, 88 Mo.

598.

S. C.-Means v. Feaster, 4 S. C.

249.

W. Va.-White v. Perry, 14 W. Va. 66; Murdock v. Baker (1899), 32 S. E. 1009.

35. Ark.-Mente v. Townsend, 68 Ark. 391, 59 S. W. 41.

Ill.-Hank v. Van Ingen, 196 Ill. 20, 63 N. E. 705, aff'g 97 Ill. App. 642.

Iowa.-Doxsee V. Waddick, 122 Iowa, 599, 98 N. W. 483.

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

Minn.-Benson v. Nash, 75 Minn. 341, 77 N. W. 991.

W. Va.-Reynolds v. Gawthorp, 37 W. Va. 3, 16 S. E. 364; Core v. Cunningham, 27 W. Va. 206.

36. Truesdell v. Bourke, 145 N. Y. 612, 40 N. E. 83, rev'g 80 Hun, 55, 29 N. Y. Supp. 849; Wilson v. Welsh, 41 Fed. 570; Tuteur v. Chase, 66 Miss. 476, 6 So. 241, 14 Am. St. Rep. 577, 4 L. R. A. 832; Hetterman v. Young (Tenn. Ch. App. 1898), 52 S. W. 532.

37

or that he was otherwise embarrassed, any inference of fraud on the part of the buyer is negatived. In a suit to set aside conveyances alleged to be fraudulent as against the grantor's creditors, if the grantees testify positively as to the good faith of the conveyances, and there is nothing to overcome their testimony, the conveyances must stand.38

37. Erdhouse v. Hickenlooper, Fed. Cas. No. 4,509, 2 Bond. 392.

38. Sawyer v. Moyer, 109 Ill. 461; DeLoach v. Sarratt, 55 S. C. 254, 33 S. E. 2, 35 S. E. 441.

CHAPTER XVIII.

TRIAL.

Section 1. Trial; mode and conduct in general.

2. Submission of issues to jury.

3. Reference and accounting.

4. Questions for jury; questions of law and fact; fraudulent intent in general.

5. Nature and form of transaction.

6. Sufficiency of transfer of possession to vendee.

7. Nature, source and sufficiency of consideration.

8. Indebtedness and insolvency.

9. Knowledge and participation of grantee.

10. Existence of creditors; secrecy; preferences; withholding instrument from record.

11. Submission of case to jury.

12. Instructions; province of court and jury.

13. Form and sufficiency of instructions.

14. Requests for instructions.

15. Verdict and findings generally.

16. Special interrogatories and findings by jury.

17. Findings by court.

18. New trial.

Section 1. Trial - Mode and conduct in general.-Where on the trial of a cause, a party, seeking to avoid a conveyance, admits that there is no actual fraud in the transaction, the court will not look into the question of fraud, even after verdict, and where a case is made subject to the opinion of the court. In replevin, on an issue whether plaintiff's purchase of the property was in fraud of his vendor's creditors, it is proper to withdraw from the jury evidence that the vendor fraudulently contracted the debts, where there is no evidence connecting the plaintiff with such fraud. In an action by attachment creditors of an insolvent firm to set aside prior judgments of other creditors entered upon offers

1. Jackson v. Peck, 4 Wend. (N. Y.) 300.

2. Mathews v. Reinhardt, 149 Ill. 635, 37 N. E. 85, aff'g 43 Ill. App. 169.

3

to allow judgments, the court will not adjourn the trial to allow plaintiffs first to procure judgments. As a general rule, the rules applicable to the course and conduct of trials in civil actions generally govern trials in actions in which it is sought to set aside conveyances as fraudulent as against creditors.*

5

§ 2. Submission of issues to jury.-Though the form of an issue framed for the jury whether a conveyance was made with intent to hinder, delay, or defraud the creditors of the debtor including plaintiff, can hardly be construed as obliging plaintiff to show that the debtor, in making the conveyance, had in mind the fraudulent intent to defraud this particular plaintiff, still, to avoid possible objection, the inquiry should be: (1) Was the conveyance made with intent to hinder, delay, or defraud the then existing creditors of the debtor, or (2) subsequent creditors of the debtor. Notwithstanding a statute makes the question of fraudulent intent a question of fact, a court of equity may determine such question without the aid of a jury. It is the province of the court and not of the jury to pass upon the legal effect of an assignment, where the question is whether the provisions of the instrument are such as render it void for fraud against creditors under the statute, and it is error to submit to the jury the question what was the intent of the parties in making it. Where, in an action against a husband and wife to set aside an antenuptial deed of marriage settlement on the ground that the same was given with

3. Columbus Watch Co. v. Hodenpyl, 61 Hun (N. Y.), 557, 16 N. Y. Supp. 337.

4. U. S.-United States v. Griswold, 8 Fed. 556, 7 Sawy. 311.

Iowa. - Bixby v. Carskaddon, 70 Iowa, 726, 29 N. W. 626, right to open and close.

Mo.-Leeper v. Bates, 85 Mo. 224, overruling defendant's demurrer to plaintiff's evidence.

Pa.-Heath v. Slocum, 115 Pa. St. 549, 9 Atl. 259, rejecting offer of testimony.

6

Va.-Cronie v. Hart, 18 Gratt. 739, directing inquiry.

5. Miller v. Cobb, 64 Hun (N. Y.), 637, 19 N. Y. Supp. 442; Clement v. Cozart, 112 N. C. 412, 17 S. E. 486; Rouse v. Bowers, 108 N. C. 182, 12 S. E. 985.

6. Cunningham v. Freeborn, 11 Wend. (N. Y.) 241; Sheldon V. Dodge, 4 Den. (N. Y.) 217; Goodrich v. Downs, 6 Hill (N. Y.), 438. And see Dorwin v. Patton (Minn. 1907), 112 N. W. 266.