§2150. Proof must overcome presumption of honesty.-It has been held that the proof of fraud must be sufficient to overcome the presumption that all transactions are conducted honestly and without fraud. Hence where fraud is charged the proof should not only be sufficient to establish an innocent act, but to overcome the presumption of honesty. Chief Justice Shaw, speaking for the Massachusetts Supreme Court, said: "We think it not contrary to any rule or principle of law for the judge to inform the jury that, as the charge of fraud is a charge against a presumption of fact, perhaps often a slight one, yet the jury in order to be satisfied might require somewhat stronger evidence than would suffice to prove the acknowledgment of an obligation or the delivery of a chattel.”109

§ 2151. Burden of proof-Prima facie case. The authorities agree on the proposition that the burden is upon the person attacking a conveyance as fraudulent to establish the fraud. There is conflict in the decisions of the various courts as to what shall constitute a prima facie case. In some jurisdictions it is held that the proof of the fraud of the grantor is sufficient to establish a prima facie case which must be met by the grantee by evidence that he is a purchaser in good faith, for value.110 But in other jurisdictions it is held that the burden is on the creditor or the complainant to show the fraudulent design of the grantor and either notice or knowledge of and participation in such intent on the part of the grantee.111 It seems to be

100 Hatch V. Bayley, 12 Cush. (Mass.) 27, 30; Greer v. Caldwell, 14 Ga. 207; Lynn v. Baltimore &c. R. Co., 60 Md. 404; Bierer's Appeal, 92 Pa. St. 265; Fick v. Mulholland, 48 Wis. 310, 4 N. W. 527; Jones v. Simpson, 116 U. S. 609, 6 Sup. Ct. 538; Babbitt v. Dotten, 14 Fed. 19; Walker v. Collins, 59 Fed. 70.

110 Hamilton v. Blackwell, 60 Ala. 545; Gordon v. Tweedy, 71 Ala. 202; Miller v. Fraley, 21 Ark. 22; Richards v. Vaccaro, 67 Miss. 516, 7 So. 506; Ott v. Smith, 68 Miss. 773, 10 So. 70; Starin v. Kelly, 88 N. Y. 418; Worthy v. Caddell, 76 N. Car. 82; Rogers v. Hall, 4 Watts (Pa.) 359; Clark v. Depew, 25 Pa. St. 509; Lloyd v. Lynch, 28 Pa. St. 419; Ful

lenwider v. Roberts, 4 Dev. & B. (N. Car.) 278; Brown v. Texas Hedge Co., 64 Tex. 396.

111 Partelo v. Harris, 26 Conn. 480; Knower v. Cadden &c. Co., 57 Conn. 202, 17 Atl. 580; Trumbull v. Hewitt, 62 Conn. 448, 26 Atl. 350; Schroeder v. Walsh, 120 Ill. 403, 11 N. E. 70; Haberer v. Walzer, 109 Ill. App. 371; Adams v. Foley, 4 Iowa 44; Means v. Flanagan, 79 Ill. App. 296; Mortimer v. McMullen, 102 Ill. App. 593; Fifield v. Gaston, 12 Iowa 218; Drummond v. Couse, 39 Iowa 442; Cooke v. Cooke, 43 Md. 522, 524; Fuller v. Brewster, 53 Md. 358; Smith v. Pattison, 84 Md. 341, 35 Atl. 963; Bridge v. Eggleston, 14 Mass. 245; Foster v. Hall, 12 Pick. (Mass.) 89; Tan

the rule, as held by some courts, that where a conveyance is made by an insolvent in the satisfaction of an antecedent debt, the burden of proof is upon the grantee to show that the consideration was both valuable and adequate.112

§ 2152. Intent-A question of fact.-Under a statute the Indiana Supreme Court has held that the question of fraudulent intent could not be one of legal inference or presumption, but it is a question of fact to be found from the facts and circumstances of the case.113 A conveyance is not to be adjudged fraudulent even as against creditors where the proof shows that it was founded on a valuable consideration. But facts and circumstances, in addition to the want of a valuable consideration, must be alleged and proved by the party seeking to avoid the conveyance; nor does proof of the fact of a want of consideration cast the burden of proving good faith upon the grantee, but the attacking creditor must prove not only the want of consideration but the indebtedness, the fact that the grantor, the debtor, has not means and property remaining sufficient to pay his debts; or that he is insolvent, and such like facts and circumstances as would be sufficient to prove the fraud.114 When it appears that an adequate consideration was paid for the conveyance in order to overthrow it on the ground of fraud, the burden is upon the creditor or the party attacking it to prove an intent in the mind of the grantor to cheat and defraud or to hinder and delay his creditors. 115 In proving the fraud charged it is proper to show the dealings and declarations of the grantor subsequent to the time of the conveyance in question as tending to prove the fraud charged in the conveyance.116

2153. Intent of grantor-Knowledge of grantee. As a general rule, but not always, the question of the fraudulent character of

tum v. Green, 21 N. J. Eq. 364; Bank v. Northrup, 22 N. J. Eq. 58; Insur ance Co. v. Tooker, 35 N. J. Eq. 408; Kruse v. Moore, Ore. 158; Mehlhop v. Pettibone, 54 Wis. 652.

112 Hodges v. Coleman, 76 Ala. 103; Pollak v. Searcy, 84 Ala. 259, 4 So. 137; Mobile Sav. Bank v. McDonnell, 89 Ala. 434, 8 So. 137; Morrison v. Morris, 85 Ala. 196, 4 So. 667; Page v. Francis, 97 Ala. 379, 11 So. 136; Caldwell v. Pollak, 91 Ala. 353, 8 So.

546; Miller v. Fowan, 108 Ala. 98, 100, 19 So. 9.

113 Pence v. Croan, 51 Ind. 336; Bishop v. State, 83 Ind. 67; Phelps v. Smith, 116 Ind. 387, 17 N. E. 602, 19 N. E. 156.

114 Pence v. Croan, 51 Ind. 336; Sherman v. Hogland, 54 Ind. 578; Bishop v. State, 83 Ind. 67.

115 Haston v. Castner, 31 N. J. Eq. 697.

116 Vansickle v. Shenk, 150 Ind. 413, 50 N. E. 381.

the conveyance depends upon the intent of the grantor and not upon the intent of the grantee.117 Where a deed, absolute on its face, is attacked for fraud the burden is upon the complainant to prove by a preponderance of the evidence the fraudulent intent of the grantor and also the knowledge of that intent on the part of the grantee.118 Proof of the vendor's intention to defraud his creditors is not sufficient to invalidate the conveyance in the absence of all proof showing that the vendee either had knowledge of, or participated in, the fraud.119 To avoid a conveyance made on an adequate consideration, it is not sufficient to show that the grantor intended to defraud his creditors. To be sufficient as against such a conveyance the proof must show that the grantee participated in the fraudulent intent of the grantor.120 Where the evidence shows that the grantee participated in the fraud, or accepted the conveyance for the purpose of enabling his grantor to defeat or defraud his creditors, he holds the land as trustee of the credit

§ 2154. Fraud of vendor-Burden on vendee.-The presumption of law is that the vendee has rightfully acquired possession of the property by a valid conveyance. And when it is made to appear by the proof that the vendor made the sale with the fraudulent intent to hinder or delay his creditors, the burden is then cast upon the vendee, as between him and a creditor attacking the conveyance, to prove that he paid a sufficient consideration for the property in question. But proof of payment of a valuable consideration alone will not defeat the action of the creditor where it appears from all the facts and circumstances that the vendee purchased in bad faith or with knowledge of the fraudulent intent of the vendor.122 But the rule long established

117 Ross v. Wellman, 102 Cal. 1, 36 Pac. 402; Judson v. Lyford, 84 Cal. 505, 24 Pac. 505; Bump Fraud. Conv. 279.

118 Reiger v. Davis, 67 N. Car. 185; Savage v. Knight, 92 N. Car. 493; Beasley v. Bray, 98 N. Car. 266, 3 S. E. 266; Haynes v. Rogers, 111 N. Car. 228, 16 S. E. 416; Roberts v. Buckley, 145 N. Y. 215, 39 N. E. 966.

119 Anderson v. Hooks, 9 Ala. 704; Tompkins v. Nichols, 53 Ala. 197; Walker v. Collins, 50 Fed. 737.

120 Lassiter v. Davis, 64 N. Car.

498; Johnston v. Field, 62 Ind. 377; Bank &c. v. Carter, 89 Ind. 317; Jewett v. Meech, 101 Ind. 289; Carnahan v. McCord, 116 Ind. 67, 18 N. E. 177; Scott v. Davis, 117 Ind. 232, 20 N. E. 139; Hays v. Montgomery, 118 Ind. 91, 20 N. E. 646.

121 Eve v. Louis, 91 Ind. 457; Eiler v. Crull, 112 Ind. 318, 14 N. E. 79; Blair v. Smith, 114 Ind. 114, 15 N. E. 817.

122 Jones v. Simpson, 116 U. S. 609, 6 Sup. Ct. 538; Ellinger v. Crowl, 17 Md. 361; Goodman v. Wineland, 61

in New York and other jurisdictions is that a voluntary conveyance by one indebted at the time is prima facie only and not conclusively fraudulent, and that the burden of proof to show the good faith of the transaction is upon the party claiming under the conveyance.123 But when it appears that the transaction itself is unfair or is prima facie shown to be illegal, the presumption of good faith and legality in ordinary business transactions are no longer presumed and the burden is upon the opposite party to show the good faith of the transaction.124

§ 2155. Debtor's insolvency-Grantee's knowledge. The rule is now almost universally conceded that a failing debtor may prefer a creditor, except as otherwise prohibited by the bankrupt act. But it

Md. 449; Adoue v. Spencer, 62 N. J. Lawrence, 58 Iowa 55, 12 N. W. 74; Eq. 782, 49 Atl. 10; Brown V. Mitchell, 102 N. Car. 347, 9 S. E. 702; Hardy v. Simpson, 13 Ired. L. (N. Car.) 132; Pennington v. Seal, 49 Miss. 518; Clark v. Depew, 25 Pa. St. 509; Ross v. Wellman, 102 Cal. 1, 36 Pac. 402; Blakeney v. Kirkley, 2 Nott & M. (S. Car.) 544; Spence v. Dunlap, 6 Lea (Tenn.) 457.

123 Harrell v. Mitchell, 61 Ala. 270; McKeown v. Allen, 37 Fla. 490, 20 So. 556; Booher v. Worrill, 57 Ga. 235; Emerson v. Bemis, 69 Ill. 537; Fanning v. Russell, 94 Ill. 386; Bittinger v. Kasten, 111 Ill. 260; Taylor v. Eubanks, 3 A. K. Marsh. (Ky.) 239; Worthington v. Shipley, 5 Gill (Md.) 449; Williams v. Banks, 11 Md. 198; Atkinson v. Phillips, 1 Md. Ch. 507; Potter v. McDowell, 31 Mo. 62; Jackson v. Town, 4 Cow. (N. Y.) 599; Seward v. Jackson, 8 Cow. (N. Y.) 406; Van Wyck v. Seward, 6 Paige Ch. (N. Y.) 62; Bank &c. v. Housman, 6 Paige Ch. (N. Y.) 526; Holden v. Burnham, 63 N. Y. 74; Jenkins v. Clement, 1 Harper Eq. (S. Car.) 72; Jacks v. Tunno, 3 Des. (S. Car.) 1; Burkey v. Self, 4 Sneed (Tenn.) 121; Pratt v. Curtis, 2 Lowell (U.S.) 87; Elwell v. Walker, 52 Iowa 256, 3 N. W. 64; Strong v.

Salmon v. Bennett, 1 Conn. 525; Thacher v. Phinney, 7 Allen (Mass.) 146; Lerow v. Wilmarth, 9 Allen (Mass.) 382; French v. Holmes, 67 Me. 186; Pomeroy v. Bailey, 43 N. H. 118; Stevens v. Robinson, 72 Me. 381; Gardiner Sav. Institution v. Emerson, 91 Me. 535, 40 Atl. 551; Atkinson v. Phillips, 1 Md. Ch. 507; ' Sewall v. Baxter, 2 Md. Ch. 447; Winchester v. Charter, 12 Allen (Mass.) 606; Herschfeldt v. George, 6 Mich. 456; Young v. White, 25 Miss. 146; Wilson v. Kohlheim, 46 Miss. 346; Pennington v. Seal, 49 Miss. 518; Cock v. Oakley, 50 Miss. 628; Walsh v. Ketchum, 84 Mo. 427; Fehlig v. Busch, 165 Mo. 144, 65 S. W. 542; Clark v. Thias, 173 Mo. 628, 73 S. W. 616; Cook v. Johnson, 12 N. J. Eq. 51; Crumbaugh v. Kugler, 2 Ohio St. 374; Hardy v. Simpson, 13 Ired. L. (N. Car.) 132; Blakeney v. Kirkley, 2 Nott & M. (S. Car.) 544; Reynolds v. Lansford, 16 Tex. 286; Wiswell v. Jarvis, 9 Fed. 84; Edwards v. Entwisle, 2 Mack. (U. S.) 43.

124 Richards v. Vaccaro, 67 Miss. 516, 7 So. 506; Bigelow Fraud, 130, 132; Wharton Ev., §§ 366, 1248.

is not within the scope of this chapter to enter upon that subject. The only purpose here is to state the rule as it has been held, that neither proof of the fact that the grantee knew that the grantor was indebted to other persons, nor proof of the fact that the grantee knew that the grantor was insolvent is regarded as sufficient evidence to establish the fraudulent intent either on the part of the grantor or of the grantee.125 Insolvency may be proved by a return of nulla bona; and such fact may be proved in other ways.126 It has been held that where a person is heavily indebted and conveys all his property without consideration, the presumption of fraud is irresistible.127

§ 2156. Inferences of fraud-Prima facie proof of intent.-The rule as to the quantum of evidence necessary to establish a fraudulent conveyance has been stated as follows: "Fraud may be legally inferred from the facts and circumstances of the case, when such facts and circumstances are of such a character as to lead a reasonable man to the conclusion that the conveyance was made with the intent to hinder, delay or defraud creditors. When the facts and circumstances in any case are such as to make a prima facie case of such fraudulent intent, they are to be taken as conclusive evidence of such intent, unless rebutted by other facts and circumstances in the case. Although a deed be made for a valuable and adequate consideration, yet if the intent with which the grantor made be fraudulent, the deed will be void, if the grantee had notice of such intent."128

§ 2157. Debtor's want of other property-Pleading and proof. A creditor seeking to set aside a conveyance of his debtor as fraudulent must allege in his complaint and prove on the trial that such debtor did not possess other property subject to execution at the time of the conveyance sufficient for the payment of the debt, and that at the time of the commencement of the action to set aside such con

125 Gage v. Chesebro, 49 Wis. 486, 5 N. W. 486; Norwegian &c. Co. v. Hanthorn, 71 Wis. 529, 37 N. W. 825; Mendleson v. Paschen, 71 Wis. 591, 37 N. W. 815; Erdall v. Atwood, 79 Wis. 1, 47 N. W. 1124.

128 Guyer v. Figgins, 37 Iowa 517. 127 Judson v. Lyford, 84 Cal. 505, 24 Pac. 286.

128 Livesay v. Beard, 22 W. Va.

585; Rose v. Brown, 11 W. Va. 122, 134; Martin v. Rexroad, 15 W. Va. 512; Gashorn v. Snodgrass, 17 W. Va. 717; Harden v. Wagner, 22 W. Va. 356; Claflin v. Foley, 22 W. Va. 434; Hudgins v. Kemp, 20 How. (U. S.) 45; Wright v. Hencock, 3 Munf. (Va.) 521; Briscoe v. Clarke, 1 Rand. (Va.) 213; Spence v. Bagwell, 6 Gratt. (Va.) 444.