CHAPTER CV.

FRAUD, FRAUDULENT CONVEYANCE, AND DURESS.

2147. Party may testify as to intent -Limitations.

2123. Pleading fraud in general 2148. Fraudulent concealment.

2125. Proof need not follow plead- 2149. Burden-Presumption of hon

of fraud- 2151. Burden of proof-Prima facie

2154. Fraud of vendor-Burden on vendee.

2133. Difficulty of making proof of 2155. Debtor's insolvency

2137. Proof must establish certain 2158. Voluntary conveyance-Prima

§ 2122. Proof of fraud.—Fraud is said to consist in acts, or omissions to act, which involve a breach of legal duty, trust or confidence, which are injurious to the party complaining; and when one party charges another with having fraudulently performed such acts or with having omitted to do such acts to the injury of the complaining party, he must establish the commission or the omission of such acts by proof. The proofs required to establish the acts constituting the fraud may be positive or they may be circumstantial, or they may be both positive and circumstantial.1 Fraud should not be inferred where it appears to be only possible; but, it is said, that it should be established by positive proof, or by circumstances of such force as not to permit of serious doubt.2 The law prescribes no rule as to the quantity of evidence to prove fraud; it does not require the degree of certainty as in criminal cases; a preponderance is all the law requires. It has been held that the evidence need not be sufficient to satisfy the jury of the existence of the fact, as a plaintiff would. be entitled to recover if the facts necessary were established by a preponderance of the evidence. The law does not require conclusive

1 Kennedy v. Kennedy, 2 Ala. 571; Snodgrass v. Branch Bank, 25 Ala. 161; Warren v. Gabriel, 51 Ala. 235. 2 Vanderveer, In re, 20 N. J. Eq. 463.

Schmick v. Noel, 72 Tex. 1, 8 S. W. 83; Wylie v. Posey, 71 Tex. 34, 9 S. W. 87.

Baines v. Ullmann, 71 Tex. 529, 9 S. W. 543; Bluntzer v. Dewees, 79 Tex. 272, 15 S. W. 29; Watkins v. Wallace, 19 Mich. 57, 77; O'Donnell v. Segar, 25 Mich. 367; Hough v. Dickinson, 58 Mich. 89, 24 N. W. 809; Ross v. Miner, 67 Mich. 410, 35 N. W. 60; Ferris v. McQueen, 94

6

proof in such case, as this would too frequently result in the practical frustration of justice and render abortive all efforts to disclose the fraud; the law is satisfied with a reasonable degree of certainty." While the proof must show that the fraud existed at the time of the transaction complained of, yet it is recognized by some courts that it is only possible to prove the fraud by proof of subsequent acts which throw light on the original transaction. "It is very seldom that perfectly clear proof can be produced of fraud. In civil cases. one party is as much entitled as the other to any doubt which may arise on the evidence. If the plaintiff in this case produce such evidence of the fact he alleged against the defendant's title, as the jury could reasonably and safely rest their conscience upon, it was enough."

§ 2123. Pleading fraud in general terms.-In some of the early cases, and especially in some classes of these cases, it was held sufficient, as against a demurrer, to plead the fraud in general terms. Thus, in an action on a sealed note it was held sufficient to charge that the note was obtained by fraud. The reason given was that the nature of a valid instrument precluded any inquiry into the want of consideration; and that therefore any representations made to induce its execution, as to the nature or sufficiency of the consideration, are not subject to inquiry, and that therefore the adverse party could not be mislead by supposing that the inquiry under the plea of fraud would be the investigation of some question which the law would not permit. And as no inquiry could be made into. the consideration of a specialty, and as the only question that could be controverted was the execution of the instrument, it was held that a plea of fraud in general terms was sufficient; but this rule was confined to cases where the fraud related to the execution of the instrument.9

Mich. 367, 54 N. W. 164; State v.
Ross, 118 Mo. 23, 69, 23 S. W. 196.

Brower v. Goodyer, 88 Ind. 572;
Stanfield v. Stiltz, 93 Ind. 249;
Adams v. Curtis, 137 Ind. 175, 36 N.
E. 1095.

Ross v. Miner, 64 Mich. 204, 31 N. W. 185; Burrill v. Kimbell, 65 Mich. 217, 31 N. W. 142; Glessner v. Patterson, 164 Pa. St. 224, 231, 30 A. 355; Van Sciver Co. v. McPherson, 199 Pa. St. 331, 49 Atl. 73.

'Abbey v. Dewey, 25 Pa. St. 413; Young v. Edwards, 72 Pa. St. 257. * Saunders v. Stotts, 6 Ohio 380; Derby v. Corlett, 1 Clev. L. R. 210, 4 Ohio Dec. (Reprint) 283.

Vrooman v. Phelps, 2 Johns. (N. Y.) 177; Van Valkenburgh v. Rouk, 12 Johns. (N. Y.) 337; Dorr v. Munsell, 13 Johns. (N. Y.) 430; Dale v. Roosevelt, 9 Cow. (N. Y.) 307; Jackson v. Hills, 8 Cow. (N. Y.) 290; Franchot v. Leach, 5 Cow. (N.

§ 2124. Pleading fraud-Specific facts.-It is now conceded to be the general, if not the universal rule, in pleading fraud, whether in the complaint or answer, that it is necessary to set out with particularity the facts or acts constituting the fraud. The reason. for this rule is that fraud is not in itself a fact, but is a term that the law applies to certain facts, and as a conclusion from them.10 The general rule has been stated as follows: "It is not sufficient to plead fraud generally, or merely to characterize actions as fraudulent. The facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation, craft, finesse, or abuse of confidence, by which another is mislead, to his detriment, and these, or some of them, must be alleged and proved. Mere epithets, or adverbs characterizing conduct, which may be innocent, amount to nothing." There are other reasons why fraud should be so pleaded. "Pleadings in equity and at law are designed to apprise parties and the court of the material facts on which the asserted right depends, and to invoke attention to the points

Y.) 506; Stevens v. Judson, 4 Wend.
(N. Y.) 473; Belden v. Davies, 2
Hall (N. Y.) 433, 446; Hazard v.
Irwin, 18 Pick. (Mass.) 95.

10 Mock v. Pleasants, 34 Ark. 63; Wetherly v. Straus, 93 Cal. 283, 28 P. 1045; Arthur v. Gard, 3 Colo. App. 133, 32 Pac. 343; Tucker v. Parks, 7 Colo. 62, 1 Pac. 427, 3 Pac. 486; De Votie v. McGerr, 15 Colo. 467, 24 Pac. 923; Dean v. Mason, 4 Conn. 428; Crocker v. Higgins, 7 Conn. 342; Brainerd v. Arnold, 27 Conn. 617; Deans v. Wilcoxon, 25 Fla. 980, 7 So. 163; Klein v. Horine, 47 Ill. 430; Jones v. Albee, 70 Ill. 34; Smith v. Brittenham, 98 Ill. 188; Murphy v. Murphy, 189 Ill. 360, 59 N. E. 796; Jenkins v. Long, 19 Ind. 28; Farmer v. Calvert, 44 Ind. 209; Thomas v. Ruddell, 66 Ind. 326; Root v. Schaffner, 39 Iowa 375; Gray v. Earl, 13 Iowa 188; Booth v. Booth, 3 Litt. (Ky.) 58; Coleman v. McKinney, 3 J. J. Marsh, (Ky.) 246; Timms v. Shannon, 19 Md. 296;

Holcomb v. Noble, 69 Mich. 396; Martin v. Lutkewitte, 50 Mo. 58; Turner v. Killian, 12 Neb. 580; Hamilton v. Ross, 23 Neb. 630, 37 N. W. 467; Gouverneur v. Elmendorf, 5 Johns. Ch. (N. Y.) 79; Evertson v. Miles, 6 Johns. (N. Y.) 138; James v. M'Kernon, 6 Johns. (N. Y.) 543; Forsyth v. Clark, 3 Wend. (N. Y.) 637; Smith v. Long, 9 Daly (N. Y.) 429; Bailey v. Ryder, 10 N. Y. 363; Keel v. Levy, 19 Ore. 450, 24 Pac. 253; M'Crelish v. Churchman, 4 Rawle (Pa.) 26; Johnson's Appeal, 9 Pa. St. 416; Horan v. Long, 11 Tex. 230; Irion v. Mills, 41 Tex. 310, 316; Knibb v. Dixon, 1 Rand (Va.) 249; Patton v. Taylor, 7 How. (U. S.) 132; Very v. Levy, 13 How. (U. S.) 345; Voorhees v. Bonesteel, 16 Wall. (U. S.) 16; Noonan v. Lee, 2 Black (U. S.) 499.

" McIlroy v. Buckner, 35 Ark. 555; Twombly v. Kimbrough, 24 Ark. 459, 464.

to which testimony should be directed."12 And as fraud is never presumed, it is the rule that, where it is relied upon as a ground of relief, the facts and circumstances constituting the fraud must be stated in the bill with distinctness and precision, so that an issue may be formed which will apprise both parties of proof proper to be taken.18 To justify the imputation of fraud, it is said, the facts must be so stated that they are not explicable on any other reasonable hypothesis. The courts are now practically unanimous in holding to this general rule requiring the facts constituting the fraud to be pleaded with great certainty and particularity, whether stated in the complaint, answer or reply.15 In the absence of all allegations of fraud in the pleading, no proof on that subject can be offered.10

12 Crocket v. Lee, 7 Wheat. (U. S.) 522.

13 Kennedy v. Kennedy, 2 Ala. 571; Conway v. Ellison, 14 Ark. 360; Pendleton v. Galloway, 9 Ohio 178. 14 Steele v. Kinkle, 3 Ala. 352, 358; Durr v. Jackson, 59 Ala. 203.

15 McKeay v. Collehan, 13 Ala. 828; Flewellen v. Crane, 58 Ala. 627; Pickett v. Pipkins, 64 Ala. 520; Morgan v. Morgan, 68 Ala. 80; Chamberlain V. Dorrance, 69 Ala. 40; Meadows v. Meadows, 73 Ala. 356; McHan v. Ordway, 76 Ala. 347; Phoenix Ins. Co. v. Moog, 78 Ala. 284; Burford v. Steele, 80 Ala. 147; Penny v. Jackson, 85 Ala. 67, 4 So. 720; Steiner v. Parsons, 103 Ala. 215, 13 So. 771; History Co. v. Dougherty, 3 Ariz. 387, 29 Pac. 649; Abraham v. Gray, 14 Ark. 301; Conway v. Ellison, 14 Ark. 360; Keller v. Vowell, 17 Ark. 445; Seaborn v. Sutherland, 17 Ark. 603; Ringgold v. Stone, 20 Ark. 526; Twombly v. Kimbrough, 24 Ark. 459; Mock v. Pleasants, 34 Ark. 63, 68; McIlroy v. Buckner, 35 Ark. 555; Hanf v. Whittington, 42 Ark. 491; Jackson v. Reeve, 44 Ark. 496; Harris v. Taylor, 15 Cal. 348; Crane v. Hirshfelder, 17 Cal. 467; Oakland v. Carpentier, 21 Cal. 642, 666; Castle

v. Bader, 23 Cal. 75, 76; Oroville &c. R. Co. v. Plumas Co., 37 Cal. 354; Capuro v. Builders' Ins. Co., 39 Cal. 123; Triscony v. Orr, 49 Cal. 612; Sacramento &c. Bank v. Hynes, 50 Cal. 195; Goodwin v. Goodwin, 59 Cal. 560; Kidder's Estate, 66 Cal. 487, 6 Pac. 326; Estep v. Armstrong, 69 Cal. 536, 11 Pac. 132; Green v. Hayes, 70 Cal. 276, 11 Pac. 716; Pehrson v. Hewitt, 79 Cal. 594, 21 Pac. 950; Albertoli v. Braham, 80 Cal. 631, 22 Pac. 404; People v. McKenna, 81 Cal. 158, 22 Pac. 488; Woodroof v. Howes, 88 Cal. 184, 26 Pac. 111; Cosgrove v. Fisk, 90 Cal. 75, 27 Pac. 62; Wetherly v. Straus, 93 Cal. 283, 29 Pac. 1045; Burris v. Adams, 96 Cal. 664, 31 Pac. 565; Brereton v. Bennett, 15 Colo. 254, 25 Pac. 310; Robinson v. Dolores &c. Co., 2 Colo. App. 17, 29 Pac. 750; Bull v. Bull, 2 Root (Conn.) 476; Gates v. Steele, 58 Conn. 316, 20 Atl. 474; Mutual Loan &c. Asso. v. Price,

18 Bailey v. Ryder, 10 N. Y. 363; Byard v. Holmes, 34 N. J. L. 296; Knibb v. Dixon, 22 Va. 249; Patton v. Taylor, 7 How. (U. S.) 132; Voorhees v. Bonesteel, 16 Wall. (U. S.) 16; Noonan v. Lee, 2 Black (U. S.) 499.