enough." Other courts have asserted similiar conclusions: Osgood v. Osgood, 2 Paige, 621; Whitsell v. Whitsell, 8 B. Mon. 50; Bray v. Bray, 6 N. J. Eq. 27; Goldsmith v. Goldsmith, 6 Mich. 285; Latham v. Latham, 30 Gratt. 307; Harris v. Harris, 31 Gratt. 13; Spitler v. Spitler, 108 Ill. 120. In the case last named the court, in speaking of a statutory provision similar to ours, said: "On the other hand, because alimony may, under special circumstances, be decreed to the wife, where the divorce has been granted to the husband for her misconduct, it does not follow that such an order would be warranted where the conduct of the wife, as in the present case, has been grossly improper." It was also said: “It was manifestly not the intention of the legislature, in adopting the provisions of the statute above cited, to abrogate the general principles or policy of the law relating to the subject of alimony; but rather to clothe the courts with power to mitigate occasional hardships that would otherwise occur on account of the inflexible rule that the wife is not entitled to alimony where the divorce is granted to the husband on account of her misconduct."

Under the rule declared in Cox v. Cox, 25 Ind. 303, and Hedrick 125 v. Hedrick, 28 Ind. 291, we feel bound to adjudge that there was no such abuse of discretion in allowing counsel's fees, or in taxing costs against the appellant as will justify our interference.

Judgment reversed, with instructions to sustain the appel lant's motion to modify so much of the decree as awards alimony, and to vacate and annul that allowance; as to all other matters, the decree is affirmed.

MARRIAGE AND DIVORCE-ALIMONY-BAD CONDUCT OF WIFE AS AFFECTING ALLOWANCE OF.-See the extended note to Methvin v. Methvin, 60 Am. Dec. 671, 672. After a divorce has been granted and alimony allowed, the subsequent immoral conduct of either party is not a ground for an increase or decrease of such allowance: Cole v. Cole, 142 Ill. 19; 34 Am. St. Rep. 56.

HUTCHINSON v. FIRST NATIONAL BANK OF MIOHIGAN CITY.

[133 INDIANA, 271.]

ASSIGNMENT OF MORTGAGED PREMISES FOR BENEFIT OF CREDITORS-FORECLOSURE OF MORTGAGE-RIGHTS OF ASSIGNEE.—If mortgaged premises are assigned by the mortgagor in trust for the benefit of creditors, the assignee is a necessary party defendant in a suit to foreclose the mortgage, because the legal title to the property is in him, and it is his duty on behalf of creditors to protect their rights in the foreclosure suit. If he represents any creditor, who, if the assignment had not been made, would have had a standing in court to question the validity of the mortgage, the assignee may, as the representative of that creditor, assail such conveyance. ASSIGNMENT OF Mortgage For Benefit of CREDITORS-FORECLOSURE OF MORTGAGE-DUTY OF ASSIGNEE.-If the creditors of a mortgagor, who has assigned the mortgage in trust for the benefit of his creditors, are not in a position to successfully assail its validity on foreclosure, it is not the duty of the assignee to assail it. UNRECORDED MORTGAGES-EFFECT OF ON CREDITORS.-When by statute unrecorded mortgages are to be deemed, as an inference of law, fraudulent and void as to "subsequent purchasers, lessees, or mortgagees," the terms of the statute will not be extended so as to include and protect the general creditors of the mortgagor. UNRECORDED MORTGAGES-EFFECT OF ON CREDITORS OF MORTGAGOR.-In the absence of express fraud, the mere failure of a mortgagee to record his mortgage within the time fixed by statute does not as against the creditors of the mortgagor, either prior or subsequent, render it invalid. FRAUD-WHEN MUST BE FOUND AS FACT.-If by statute the question of fraud is made one of fact, and fraud is essential to the cause of action, it must be found as a fact, and not left to be inferred as matter of law. FRAUDULENT CONVEYANCES-FRAUD MUST BE ALLEGED AND FOUND.-Not

n

only must fraud be found as an ultimate fact, in order to avoid a con. veyence as being fraudulently executed to hinder and delay creditors, when the statute makes fraud a question of fact, but the complaint in such action must also expressly allege that the instrument was executed with a fraudulent intent. FRAUDULENT CONVEYANCES-FRAUDULENT INTENT MUST BE ALLEGED.In an action brought by, or for the benefit of, subsequent creditors, the complaint must aver that the instrument to be avoided was executed with intent to defraud subsequent as well as existing creditors. MORTGAGES.-MERE FAILURE TO RECORD a mortgage within the time fixed by statute, whether such failure is in pursuance of a previous contract, or by mere neglect, is not sufficient of itself to enable the mortgagor's creditors to avoid such instrument. In such cases the known insolvency of the mortgagor, active misrepresentation of his financial condition, or other indicia of fraud, must enter into the transaction in order to render it void as to creditors. MORTGAGES-EFFECT OF FAILURE TO RECORD UPON CREDITORS.-Withholding a mortgage from record in order to maintain the credit of the mortgagor is not of itself sufficient to justify a court in holding, as matter of law, that such mortgage is fraudulent and void as to creditors of the

mortgagor, either existing or subsequent, but it is a badge of fraud to be considered with all the facts and circumstances surrounding the transaction, in determining whether or not there was, in fact, a frauda. lent intent in so withholding the mortgage from record. RECEIVER-WHEN SHOULD NOT BE APPOINTED IN ACTION TO FORECLOSE MORTGAGE.-When, in an action to foreclose a mortgage against a mortgagor and his assignee, the mortgagee asks that a receiver be appointed without notice, for the reason, as he alleges, that his security will be impaired because such assignee will not prevent a sale of buildings and machinery on the mortgaged premises under a pretended chattel mortgage, the application for the appointment of the receiver should be denied, when the assignee avers in his answer that he has refused to allow, and has obtained an injunction against, such sale, and has instituted suit to have the chattel mortgage declared void.

H. B. Tuthill, H. A. Schwager, J. S. Duncan, and C. W. Smith, for the appellant.

J. H. Orr, M. Nye, and J. H. Bradley, for the appellee.

373 MILLER, J. The appellee brought this action against the Hopper Lumber and Manufacturing Company and William B. Hutchinson, its assignee, to foreclose a mortgage executed by the company prior to its assignment.

In addition to the foreclosure, the complaint charged that there was situate upon the mortgaged premises certain buildings and machinery used in the business of the company, which one James S. Hopper had advertised for sale under a pretended chattel mortgage held by the Sutton Manufacturing Company of Detroit, Michigan; that the 273 assignee of the Hopper Lumber and Manufacturing Company permitted said Hopper to take possession of the property, and will allow him to dispose of it; that the mortgaged property, including the machinery, is of less value, by six thousand dollars, than the amount due the plaintiff; that unless a receiver is appointed without notice, the mortgaged machinery, or part of it, will be removed, and the plaintiff's security will be materially impaired.

In accordance with this prayer, a receiver was appointed. No question is made as to the regularity of the proceedings in making the appointment of the receiver.

This suit was commenced, and the receiver appointed, on the eleventh day of August, 1891, in vacation.

On the tenth day of September an answer, in two paragraphs, was filed, which are as follows:

"Paragraph 1. The defendant, William B. Hutchinson, assignee of the Hopper Lumber and Manufacturing Com

pany, for a partial answer to so much of the complaint herein as prays for the foreclosure of the mortgage in the complaint mentioned and described, says that he admits that on the sixth day of January, 1891, the defendant, the Hopper Lumber and Manufacturing Company, executed to the plaintiff the several notes and the mortgage in the complaint mentioned and described, and therewith exhibited. But he says that the plaintiff is not entitle to the decree of this court for the foreclosure of said mortgage, and ordering the sale of said real estate to pay the notes aforesaid, for the reasons following, that is to say: That said notes were executed to secure a pre-existing indebtedness; that at the time of the execution of said notes and mortgage, the defendant, the Hopper Lum. ber and Manufacturing Company, was engaged, and expected to continue, in the business of buying and selling lumber and the manufacture and sale of certain refrigerators, and the manufacture and sale of certain furniture specialties, and that said 274 corporation was then in good credit; that said corporation was then indebted in large amounts to persons other than the plaintiff herein, to wit, in the sum of more than seventy-five thousand dollars, which indebtedness would mature at various dates within ninety days next succeeding the sixth day of January, 1891, which indebtedness said Hopper Lumber and Manufacturing Company expected and intended to continue by renewals and extensions thereof by its creditors; and such renewals and extensions were necessary in order for it to continue in business; that said Hopper Lumber and Manufacturing Company, at said date, also expected and intended to purchase very large amounts of lumber and other material necessary for its use in the prosecution of its said business; all of which facts were at the time fully known to the plaintiff herein; that at said time it was also well known, both to the plaintiff and said lumber manufacturing company, that if said Hopper Lumber Manufacturing Company should execute to the plaintiff the mortgage in the complaint mentioned and described, the credit of said Hopper Lumber and Manufacturing Company would be utterly destroyed, and it would be wholly unable either to procure renewals, or extension, of its then existing indebtedness, or to purchase lumber, or other material, needed by it in the prosecution of said business upon credit; that said corporation defendant, being so indebted to the plaintiff, the latter demanded from it the execution of the mortgage in the complaint mentioned and de

scribed, and therewith exhibited, to secure said indebtedness; that upon such demand being so made, the defendant corporation called the attention of the plaintiff to the foregoing facts, and to its intention to renew its then existing indebtedness, and to purchase lumber and other material upon credit, and that it was necessary for it to be able so to do, and said defendant corporation wholly refused to execute said mortgage to the plaintiff except upon the condition that the fact of the execution 275 of such mortgage and its existence should be concealed from the public, and that the same should not be recorded, to the end that it might continue in good credit, and be enabled thereby to renew said indebtedness, and to make such purchases upon credit; that said plaintiff, with a full knowledge of all of the foregoing facts, and that knowledge of the execution of said mortgage would destroy the credit of said defendant corporation, and render it impossible to renew such debts and make such purchases; and well knowing that certain agencies, well known in the mercantile and business world as mercantile agencies, exist, whose business it is to keep constant watch over the credit of all persons engaged in business, and particularly to keep close watch over the records of mortgages, and at once, if on the record of mortgages, to publish such fact to all persons engaged in business; and well knowing that if such mortgage should be put upon record the fact would be published to the persons to whom said defendant corporation was indebted, and from whom it expected to purchase such lumber and other material; and well knowing that thereby said defendant corporation would be precluded from renewing said indebtedness then existing, as well, also, as from making such purchases of lumber and other material upon credit; and well knowing that if the existence of such mortgage, and the fact of its execution, were concealed, and it withheld from record, said corporation would be able to make such renewals, and such purchases, and would in point of fact do so; and calculating and intending to enable it to do so, and to maintain its credit, said plaintiff did agree with said corporation defendant that it would conceal the fact of the execution of said mortgage and its existence, and would withhold the same from record; and thereupon, upon said agreement and condition, said defendant corpora tion did execute said mortgage in the complaint mentioned and described, and therewith exhibited; and said plaintiff