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1 Paige, 519; Lewis v. Love's Heirs, 2 B. Mon. 315; Wisner v. Farnham, 2 Mich. 472; Walcott v. Almy, 6 McLean, 23; How v. Camp, Walk. Ch. 427; Schaferman v. O'Brien, 28 Md. 565 ;) giving receipt for rent in his own name, (Duvall v. Waters, 1 Bland, 576; Callan v. Statham, 23 How.477 ;) directing the making of leases, (Schaferman v. O'Brien, 28 Md. 565;) making a sale of the land, even though acting under a power of attorney from the grantee, (Starr v. Starr, 1 Ohio, 321; Gibbs v. Thompson, 7 Humph. 179; Stanton v. Green, 34 Miss. 576: Glenn v. Glenn, 17 Iowa 493 ;) selling tin ber, (Duvall v. Waters, 1 Bland, 569 ;) paying ground rent, (Schaferman v. O'Brien, 28 Md. 565 ;) paying taxes, (Stanton v. Green, 34 Miss. 576; Hunt v. Knox, 34 Miss. 655: Jacks v. Tunno, 3 Desaus. 1; Sands v. Codwise, 4 Johns. 536; Haskell v. Bakewell, 10 B. Mon. 206 ; Hutchison v. Kelly, 1 Rob. Va. 123;) making improvements, (Sands v. Hildreth, 14 Johns. 493 ; Merry v. Bostwick, 13 Ill. 398; Marshall v. Green, 24 Ark. 410; Gibbs y. Thompson, 7 Humph. 179; Tappan v. Butler, 7 Bosw. 480 ;) or driving the grantee off of the land, (Duvall v. Waters, 1 Bland, 569.)
Anything out of the usual course of business is a badge of fraud. An unusual mode of payment is also. So is unusual credit, or inadequacy of consideration, or false recitals, or concealments, or secrecy, or embarrassment. Duivall y. Waters, 1 Bland, 569; Tav enner v. Robinson, 2 Rob. Va. 280; Borland v. Walker, 7 Ala. 269; McRea v. Branch Bank of Ala. 19 How. 376; Hudgins v. Kemp, 20 lIow. 45; Callan v. Statham, 23 How. 477; Chapel v. Clapp, 29 Iowa, 191 ; Borland v. Mayo, 8 Ala. 10:1; Gibbs v. Thompson, 7 Humph. 179; Comstock v. Rayford, 12 Smedes & M. 369; Sayre v. Fredericks, 16 N. J. Eq. 205; Richards v. Swan, 7 Gilí, 366; McNeal v. Glenn, Å Md. 87; Jackson v. Mather, 7 Cow. 301 ; Merrill v. Locke, 41.N. H. 486.
2. VOLUNTARY CONVEYANCE. A voluntary conveyance, without consideration, will vest an absolute title in the grantee, subject only to the rights of creditors, (Atwater v. Seely, 2 Fed. Rep. 133;) for such conveyances are good as between the parties, and void only when they hinder, delay, or defraud creditors. Elwell v. Walker, 3 N. W. Rep. 64. Where sufficient property is left in the hands of the debtor, subject to execution, to pay the claims of existing creditors, such conveyance is valid even as against them. Providence Savings Bank v. Huntington, 10 Fel. Rep. 871; Emery v. Yount, 1 Pac. Rep. 686. But a voluntary conveyance by one largely indebted in comparison with his resources is prima facie fraudulent. Vertner v. Humphreys, 22 Miss. (14 Smedes & M.) 130; Baker v. Welch, 4 Mo. 484; Crumbaugh v. Kugler, 2 Ohio St. 373; Gruder v. Bowles, 1 Brev. (S. C.) 266.
(1) Presumption of Acceptance. In the absence of direct testimony the acceptance of the grant will be presumed, after the expiration of four years, where the grantee held. owned, controlled, and managed the property from the time of the conveyance, and the only occupants were his tenants, and for his sole and exclusive use. Herring v Richards, 3 Fed. Rep. 439.
(2) To Wife. Transactions between husband and wife in regard to the transfer of property from him to her, by reason of which creditors are prevented from collecting their just dues, will be scrutinized very closely, and it must clearly appear that such transfer was made in good faith and for value. First Nat. Bank of Omaha v. Bartlett, 1 N. W. Rep. 199. Fraud will be presumed where a voluntary conveyance to the wife is followed within a short time by a fraudulent disposition of the remaining estate of the grantor, (Burdick v. Gill, 7 Fed. Rep. 668,) and will be void as to subsequent creditors. Id. A voluntary conveyance by the husband to the wife of a valuable estate is prima facie fraudulent as to then existing creditors, (Wiswell v. Jarvis, 9 Fed. Rep. 84; Boulton v. Hahn, 12 N. W. Rep. 560,) and the burden of proof is on the wife to show the good faith of the transaction. Kaiser v. Waggoner, 12 N. W. Rep. 754; Thompson v. Loenig, 14 X. W. Rep. 168. But a voluntary conveyance to the wife is valid where made in good faith, and the husband retains property sufficient to pay his debts Stephenson v, Cook, 20 N. W. Rep. 182; State v. Wallace, 24 N. W. Rep. 609.
A husband may, in good faith, make a gift to his wife when he is not owing anything. Tootle v. Coldwell, 1 Pac. Rep. 329. May at any time make a gift to her of exempt property, when he does so in good faith. Robb v. Brewer, 15 N. W. Rep. 420. But a transfer of property to the wife to preserve it from execution will, of course, be fraudulent. IIendershott v. Henry, 19 N. W. Rep. 665. As a general rule, a conveyance from husband to his wife will be effectual as against creditors, unless it was executed with intent to hinder or delay them, or unless the grantee has done some act which estops her to assert it as against them. Wheeler & Wilson Manuf'g Co. y. Monahan, 23 N. W.Rep. 127.
A voluntary conveyance by a husband to his wife in fraud of the grantor's creditors is valid as to subsequent creditors with notice. · In re May, 2 Fed. Rep. 845. It is held that a conveyance to the wife, as to subsequent creditors, although the husband he embarrassed at the time of its execution, is not fraudulent per se as to them, and the fact whether it is or not is to be determined from all the circumstances, and the fact of indebtedness is never conclusive of fraud. Wallace v. Penfield, 1 Sup. Ct. Rep. 216.
Where a voluntary conveyance of real property by a husband to his wife, through a
third person, leaves him unable to pay his debts, it is fraudulent. Collinson v. Jack-
A conveyance made to a wife for a valuable consideration paid by the husband will
Where a man bought certain lands, the consideration being the discharge of certain indebtedness held by him, and took the title in his wife's name without her knowledge, it was held fraudulent as to former creditors. Gear v. Schrei, 11 N. W. Rep. 625. And where a husband deeded land to a creditor in payment of a demand held against him, and such creditor reconveyed a part of such land to the wife in consideration of her signing her husband's deed, it was held to be a fraud upon the other creditors. Haynes v. Kline, 20 N. W. Rep. 453.
A husband actually indebted to his wife may, if acting in good faith, convey to her property not exempt in payment thereof, and other debtors cannot complain that such indebtedness, or a part thereof, was barred by the statute of limitations, had the debtor seen fit to assert such defense. Brigham v. Fawcett, 4 N. W. Rep. 272; Jones v. Brandt, 10 N. W. Rep. 854; Jones v. Brandt, 13 N. W. Rep. 310. And where the title to land purchased with wife's money was taken in husband's name, he may deed same to her. Bennet v. Strait, 19 N. W. Řep. 806. But he cannot convey to his wife without consideration, in fraud of interest of creditors, property earned by their joint labors, but standing in his name. Langford v. Thurlby, 14 N. W. Rep. 135.
A wife cannot allow her husband to use and appropriate her property as his own for years, and incorporate a part of his own means into it, and then, upon a conveyance of the whole from her husband, make valid claim to it as against his creditors. Moyer V. Adams, 2 Fed. Rep. 182. For a husband is not allowed to return, to the injury of his creditors, money given him by his wife to be used in his business, unless a loan. Bailey v. Kansas Manuf'g Co., 3 Pac. Rep. 756.
Where a wife had made advances to her husband from time to time by way of loan and not of gift, the subsequent conveyance of land through a third person to her, in repayment of such loans, and not made with the purpose of hindering, delaying, or defrauding creditors, but to satisfy his equitable obligations to his wife, is not a voluntary conveyance, and is valid as against creditors. Metsker v. Bonebrake, 2 Sup. Ct. Rep. 351. But even where a conveyance is made by the husband to the wife for a valuable consideration, yet with the intent to hinder and delay creditors, and this fact was known to the wife, it is fraudulent. Collinson v. Jackson, 14 Fed. Rep. 305.
(3) To Children. A voluntary conveyance from a parent to his children, by way of settlement, while solvent and free from debt, and not disproportionate to his means, will be sustained, as against subsequent creditors, in the absence of fraud. Herring v. Richards, 3 Fed. Rep. 439. Where a parent makes a voluntary conveyance of real estate to his children, and makes subsequent contributions of money to pay off incumbrances and improve the property, this will not render such conveyance void. Id. And where a banker, at the time entirely free from pecuniary embarrassment, and apparently possessed of abundant means of his own, without fraudulent or wrongful intent, voluntarily erected a dwelling-house upon his son's land without request of the son, who innocently acquiesced in the gratuitous act of the father, believing him to be a man of wealth, and shortly thereafter the father was compelled to suspend business by reason of a general financial panic, and was adjudged a bankrupt, it was held that the voluntary expenditure so made by the father was not a ground for charging the son or his land. Curry v. Lloyd, 22 Fed. Rep. 258.
A conveyance by a parent to his children of real estate, in pursuance of a former agreement, in consideration of their remaining with and working for him during their nonage, will not be upheld as against creditors existing at the time, because their seryices were not a valuable consideration, being only such services as in law they were bound to render. Dowell v. Applegate, 15 Fed. Rep. 419; Stearns v. Gage, 79 N. Y. 102; Updike v. Titus, 13 N. J. Eq. 151; King v. Malone, 31 Grat. 153; Hack v. Stewart, 8 Pa. St. 213; Sanders v. Wagonseller, 19 Pa. St. 213; Viller v. Sauerbier, 30 N.J. Eq. 71 ; Bart.
lett v. Mercer, 8 Ben. 439; Guffin v. First Nat. Bank, 74 Ill. 259; Hart v. Flinn, 36 Iowa, 366; Zerbe v. Miller, 16 Pa. St. 488; Van Wyck v. Seward, 18 Wend. 375. However, a conveyance to a grandchild under such a promise, and the rendering of such seryices, will be upheld as a conveyance for a valuable consideration, and good as against the claims of creditors. Dowell v. Applegate, 15 Fed. Rep. 419.
And where there is an express contract to pay wages to son, where he remains with and works for parent after he becomes of age, a transfer to son in liquidation of indebtedness thus created will be upheld. Byrnes v. Clark, 14 N. W. Rep. 815. For parents have a right, as against creditors, to compensate children for their services in supporting them. Howard v. Rynearson, 15 N. W. Rep. 486. And conveyances to compensate for past services, made in good faith, will be upheld. Collier v. French, 21 N. W. Rep. 90. But where a son, after he had attained majority, continued for a few years to live with his father, support him, and to labor on the farm as he had previously done, no express contract as to the payment of wages by the father for the services of the son being proved to exist between them, it was held that the father could not, after he became indebted and insolvent, convey to him real estate in payment for the services rendered by him since attaining his majority. Hack v. Stewart, 8 Pa. St. 213. Same was held in the case of a daughter, where the alleged consideration was a cow given to the daughter by her grandfather, and the cow and increase kept by the parent, and for services performed by her while in the family after attaining her majority. Hart v. Flinn, 36 Iowa, 366.
A conveyance by parent to a child of property in payment of note due is, of course, valid. Howard v. Rynearson, 15 N. W. Rep. 486. And it will not be fraudulent when made without consideration, but in good faith, before the debt was contracted, even though the parent kept the custody of the land and managed it for his daughter. Dunham y. Pitkin, 19 N. W. Rep. 166.
Conveyance by a parent largely indebted of his property, or a part thereof, for a small sum down, and notes for the balance, unsecured, or when the consideration is the assumption of a mortgage on the property simply, will be held to be fraudulent. Star Wagon Co. v. Maurer, 5 N. W. Rep. 576 ; Knowlton v. Hawes, 7 N. W. Rep. 286, Dickerman v. Farrell, 13 N. W. Rep. 422; Lyon v. Haddock, Id. 737.
But where a parent is in debt, and makes a voluntary conveyance to his child, or children, with a view of insolvency, or intending that the property shall be held in secret trust for himself, or that the conveyance shall hinder, delay, or defraud creditors, such conveyance is void. Godell v. Taylor, Wright, (Ohio,) 82 ; Carlisle v. Rich, 8 N. H. 44; Pepper v. Carter, 11 Mo. 540; Henry v. Fullerton, 13 Sinedes & M. 631 ; Wells v. Treadwell, 28 Miss. 717; Marston v. Marston, 54 Me. 476; Atkinson v. Phillips, 1 Md. Ch. 507; Clayton v. Brown, 17 Ga. 217; Mixell v. Lutz, 34 Ill. 382; Miller v. Thomson, 3 Port. (Ala.) 196; Gardner v. Boothe, 31 Ala. 186; Benton v. Jones, 8 Conn. 186; Clayton v. Brown, 17 Ga. 217; Sheppard v. Iverson, 12 Ala. 97; Parish v. Murphree, 13 How. 92; Jones v. Slubey, 5 Har. & J. 372; Kissam v. Edmonston, 1 Ired. Eq. 180; Ringgold v. Waggoner, 14 Ark. 69; Swartz v. Hazlett, 8 Cal. 118; New Haven Steam. Co. V. Vanderbilt, 16 Conn. 420; Stewart v. Rogers, 25 Iowa, 395; Brady v. Briscoe, 2 J.J. Marsh. 212; Rucker v. Abell, 8 B. Mon. 566; Birdsale v. Lakey, 6 La. Ann. 647; Rousseau v. Lun, 9 La. Ann. 325; Hoye v. Penn, 1 Bland, Ch. 28; Worthington v. Shipley, 5 Gill, 449; Bullett v. Worthington, 3 Md. Ch. 99; Brice v. Myers, 5 Ohio, 121; Croft v. Arthur, 3 Desaus. (S. C.) 223 ; Chamberlayne v. Temple, 2 Rand. (Va.) 384; Coleman v. Cocke, 6 Rand. (Va.) 618; Any v. Young, 15 N. H. 522; Seward v. Jackson, 8 Cow. 406; Robinson v. Stewart, 10 N. Y. 189; Tripp v. Childs, 14 Barb. 85; Pell v. Tredwell, 5 Wend. 661; Sterry v. Arden, 1 Johns. Ch. 261; Waller v. Mills, 3 Dev. Law, 515; Jessup v. Johnston, 3 Jones, Law, 335; Smith v. Reavis, 7 Ired. Law. 341; Morgan v. McLelland, 3 Dev. Law, 82; O'Daniel v. Crawford, 4 Dev. Law, 197; Winchester v. Reid, 8 Jones, Law, 377; McGill v. Harman, 2 Jones, Eq.179; Brown y. Godsey, Id. 417; McKimmon v. Rogers, 3 Jones, Eq. 200; Edgington v. Williams, Wright, (Ohio,) 439; Geiger y. Welsh, 1 Rawle, 349; Miner v. Warner, 2 Grant, Cas. 448; Johnston v. Harvy, 2 Pen. & W. 82; Nicholas v. Ward, 1 Head, 323 ; Hamilton v. Bradley, 5 Hayw. (Tenn.) 127; Dillard v. Dillard, 3 Humph. 41; Martin v. Olliver, 9 Humph. 561 ; Redfield v. Buck, 35 Conn. 328; Chase v. McCay, 21 La. Ann. 195; Grimes v. Russell, 45 Mo. 431.
The same is true where the conveyance is not directly from the father to the child, but from vendor to child, the father paying the purchase money therefor. Doe v. McKinney, 5 Ala. 719; Patterson v. Campbell, 9 Ala. 933; Elliott v. Horn, 10 Ala. 348; Godell v. Taylor, Wright, (Ohio,) 82; State Bank v. Harrow, 26 Iowa, 426; Ewell, Lead. Cas. 75. The same is true where the son takes the property and agrees to pay the parent's debts. Star Wagon Co. v. Maurer, 5 N. W. Rep. 576; Swihart v. Shaum, 24 Ohio St. 432; Brady v. Briscoe, 2 J.J. Marsh. 212; Robinson v. Stewart, 10 N. Y. 189. See Pattison v. Stewart, 6 Watts & S. 72 ; Preston v. Jones, 50 Pa. St. 54.
A mother's conveyance of her property to her children, just prior to her second marriage, is said to be a fraud upon the second husband. Black v. Jones, 1 A. K. Marsh. 312; Petty v. Petty, 4 B. Mon. 215. See Ramsay y. Joyce, McMull. Ch. 236; Manes v. Durant, 2 Rich. Eq. 404. But a father's conveyance of all his personalty to his chil.
dren by a former wife is held not to be a fraud on the rights of the second wife. Caneron v. Cameron, 10 Smedes & M. 394.
A marriage contracted by a child in consideration of a conveyance is a valuable consideration and will sustain the transfer. Verplank v. Sterry, 12 Johns. 536; Sterry v. Arden, 1 Johns. Ch. 261; Wood v. Jackson, 8 Wend. 9; Whelan v Whelan, 3 Cow. 537; Mills v. Morris, 1 Hoff. 419. But this rule does not apply where a voluntary conveyance is made to a child who afterwards marries, and the father continues in possession, contracting debts and dying insolvent, so as to enable the child to hold the property as against his creditors. O'Brien v. Coulter, 2 Blackf. 421. See Stokes v. Jones, 18 Ala. 734.
3. BONA FIDE PURCHASER. A bona fide purchaser of the legal title, without notice of fraudulent intent of grantor, or outstanding equities, will be protected, (Butler v. Douglass, 3 Fed. Rep. 612: Paddock v. Fish, 10 Fed. Rep. 125; Latham v. Barney, 14 Fed. Rep. 433; Scheble v. Jordan, 1 Pac. Rep. 121; Farlin v. Sook, 1 Pac. Rep. 123;) otherwise, however, if he gets no legal title, (Butler v. Douglass, 3 Fed. Rep. 612 : Latham v. Barney, 14 Fed. Rep. 433 ;) for fraudulent intent of the grantor cannot affect a bona fide purchaser for value without notice. Howe Machine Co. v. Claybourn, 6 Feil. Rep. 138; McDonald v. Hardin, 8 N. W. Rep. 473. But a bona fide purchaser from a fraudulent grantee, without notice of the fraud, is liable to any of such creditors for any portion of the purchase money remaining unpaid after notice of the fraud, and a court of equity will give the creditor a lien upon the premises for that amount. Dowell v. Applegate, 7 Fed. Rep. 881.
To constitute a bona fide purchaser for a valuable consideration the sale must be made without notice, and with the money actually paid. Savage v. Hazard, 9 N. W. Rep. 83. For where the grantee in a deed made to defraud the creditors of the grantor knows of such fraudulent intent, or has knowledge of facts sufficient to excite the suspicions of a prudent man and put him on inquiry, he makes himself a party to the fraud. Bartles v. Gibson, 17 Fed. Rep. 293. Actual knowledge on part of vendee of fraudulent intent of vendor is not necessary to render sale void. If facts brought to his attention are such as to awaken suspicion, and lead a man of ordinary prudence to make inquiry, he is chargeable with notice, and with participation in the fraud. Gollober v. Martin, 6 Pac. Rep. 267. But to render fraudulent, the purchaser must have notice of facts sufficient to put an ordinary man on his guard. Temple v. Smith, 14 N. W. Rep. 527.
A conveyance made in consideration of future support, where grantee acts in good faith, and the greater part being valuable and actually paid, will not render fraudulent. Barnett v. Knight, 3 Pac. Rep. 747. But ordinarily a voluntary transfer of property by an insolvent debtor by gift, or upon the consideration of a promised future support of the grantor, necessarily tends to delay the just ciaims of his creditors, and is prima facie evidence of a fraudulent intent. Tupper v. Thompson, 4 N. W. Rep. 621; Rynearson v. Turner, 17 N. W. Rep. 219; Graham v. Rooney, 42 Iowa, 567; Guffin v. First Nat. Bank, 74 Ill. 259.
Where a grantee takes land and agrees to pay an incumbrance thereon, which is much less than the value of the land, this will not prevent the conveyance from being of a voluntary character, so far as relates to the mortgagor's remaining interest in the land. First Nat. Bank v. Bertschy, 9 N. W. Rep. 534.
4. INTENT. To make the transfer fraudulent there must be an intent to defraud, and an act which will actually defraud creditors by hindering, delaying, or preventing the collection of their claims. Baldwin v. O'Laughlin, 11 N. W. Rep. 77. The fraudulent intent must be alleged in the petition and proven on the trial. Thompson v. Jackson, 3 Rand. 504. The fraudulent act must be clearly made out; it will not, as a rule, be presumed, (Grover v. Grover, 3 Md. Ch. 29; Weisiger y. Chisholm, 28 Tex. 780; Bridgeford v. Simonds, 18 La. Ann. 121 ; Tomlinson v. Payne, 8 Jones, Law, 108 ; Lyman v. Cessford, 15 Iowa, 229; Wright v. Grover, 27 111.426 ; Stiles v. Lightfoot, 26 Ala. 443,) or inferred from slight evidence, but is a conclusion drawn from all the circumstances surrounding the case and the parties. Hollister v. Loud, 2 Mich. 309; Colquitt v. Thomas, 8 Ga. 258; Gardiner v. Gerrish, 23 Me. 16; Hamilton v. Beall, 2 Har. & J. 414; Baldwin v. Buckland, 11 Mich. 389; Parkhurst v. McGraw, 24 Miss. 131; Jones v. Emery, 40 N. H.348; Forsyth v. Matthews, 14 Pa. St. 100.
Intent may be shown by acts and declarations before sale. Edgell v. Lowell, 4 Vt. 405 ; McLang v. Johnson, 43 Vt. 48. Nothing but intent to defraud creditors generally will render transfer voidable. Allen v. Bullock, 1 N. W. Rep. 863; Burgin v. Burgin, 1 Ired. Law, 453. The intent must be to "defraud, hinder, or delay creditors," or it does not fall within the statute of 13 Eliz. c. 5. An intent to deceive or defraud, or hinder or delay, the public, has been held not to be within the statute. Griffin v. Stod. dard, 12 Ala. 783.
The term "hinder and delay" relates merely to time, but has reference also to the interposition of obstacles with the fraudulent intent to hinder and delay. Linn v. Wright, 18 Tex. 317; Hetner v. Metcalf, 1 Head, 577. The statute implies two acts : to
"hinder or delay," and to “defraud,” creditors. The mere intent to defraud is said to vitiate a transfer. Pilling v. Otis, 13 Wis. 495; Planck v. Schermerhorn, 3 Barb. Ch. 614; Sutton v. Hanford, 11 Mich. 513; Davenport v. Cummings, 15 Iowa, 219; Burt v. JCKinstry, 4 Minn. 204, (Gil. 146.) There is something of a niore vicious nature implied by the word “fraud” than by the term "hinder and delay.” “Hinder” and “ delay are synonyms-mere pleonasms introduced out of the abundance of precaution. Read v. Worthington, 9 Bosw. 617; Burdick v. Post, 12 Barb. 108; S. C. 6 N. Y. 522.
Only such hinderance and delay as operates as a fraud comes within the statute. Hoffman v. Mackall, 5 Ohio St. 124. Thus an assignment for the benefit of creditors is not within the statute. Pickstock v. Lyster, 3 Maule & S. 371; Meux v. Howell, 4 East, 1; Wilder v. Winne, 6 Cow. 284; S. C. 4 Wend. 100. The duration of the hinderance or delay has nothing to do with the matter. Quarles v. Kerr, 14 Grat. 48; Sutton v. Hanford, 11 Mich. 513. It has been held, and that justly, that creditors have as much right to receive their bills when due as they have to receive them at all. Nicholson v. Leavitt, 6 N. Y. 510; S. C. 10 N. Y. 591 ; 4 Sandf. 253. A man may secure another who is his creditor, and thus make him a preferred creditor. Holbird v. Anderson, 5 Term R. 235; Wood v. Dixie, 53 E. C. L. 892; S. C. 7 Q. B. 892; Darvill v. Terry, 6 Hurl. & N. 807; IIall v. Arnold, 15 Barb. 599; Hartshorn v. Eames, 31 Me. 93; Gassett v. Wilson, 3 Fla. 235; Wheaton v. Veville, 19 Cal. 41. Or he may assign for the benefit of all his creditors. Riches v. Evans, 9 Car. & P. 640; Johnson v. Osenton, L. R. 4 Exch. 107; Wilt v. Franklin, 1 Bin. 502; Jackson v. Cornell, 1 Sandf. Ch. 318; Horwitz v. Ellinger, 31 Md. 492. The last, while it operates to delay creditors, yet it is not tinctured with fraudulent intent, and will be upheld by the courts.
Frauds are of two kinds: First, where the instrument itself makes the transaction fraudulent; this is called fraud in law or constructive fraud, (Lukins v. Ajrd, 6 Wall. 78;) and, second, an act that hinders, delays, or defrauds creditors, and which is conceived, "devised, and contrived of malice, covin, collusion, or guile;” and where the intent is marked by these characters, or any of them, it is a fraud in fact. Ewing v. Runkle, 20 111. 448; Meux v. Howell, 4 East, 1. The presence of the intent is a very necessary element. Sibly v. Hood, 3 Mo. 290. A legal and not a moral intent is referred to. Parties may do what they consider perfectly fair to prevent a sacrifice, with the intention of paying all their debts ultimately, or may be actuated purely by motives of compassion or affection, and yet be guilty of gross fraud upon creditors, (Sturdirant v. Davis, 9 Ired. Law, 365, Gardiner Bank v. Wheaton, 8 Me. 373; Briggs v. Mitchell, 60 Barb. 288; Trimble v. Turner, 13 Sniedes & M. 348; Flood v. Prettyman, 24 Ill. 597,) if the tendency of such act and its legitimate effect are to defeat or delay creclitors. Enders v. Swayne, 8 Dana, 103.
Constructive fraud is a question of law; fraud in fact is a question of evidence, usually, (Evans v. Rugee, 23 N. W. Rep. 24; Trowbridge v. Sickler, 11 N. W. Rep. 581 ; Sweet v. Wright, 17 N. W. Rep. 468; Howe Machine Co. v. Claybourn, 6 Fed. Rep. 438;) and when intent is material, party may testify as to what his intent was, (Frost v. Rosecrans, 23 N. W. Rep. 895;) but where there is no dispute as to the facts, it is purely a question of law.
The mere intent to prevent a sacrifice of his property on the part of the debtor is not within the statute of frauds, (Murray v. Cason, 15 Mo. 378,) but a transfer of property, without consideration, to the wife to preserve it from execution, is, (IIendershott v. Henry, 19 N. W. Rep. 665;) and where this intent is coupled with the requisite delay or hinderance, or defrauding creditors, it rises to the dignity of a fraudulent transaction, because a fraud in law. Brown v. Osgood, 25 Me. 505; Borland v. Mayo, 8 Ala. 104.
(1) Presumptions as to intent. Fraudulent intent presumed only when the interests of a third party may be injuriously affected by it. Kerrick v. Mitchell, 24 N. W. Rep. 151. But a party is conclusively presumed to have intended fraud, if fraud logically result from his conduct, (IIilliard v Cagle, 46 Miss. 309;) for every man is presumed, in the legal as well as the moral world, to intend the natural consequences of his acts. Gollober v. Martin, 6 Pac. Rep. 267; People v. Langton, 7 Pac Rep. 843; Gillet v. Phelus, 12 Wis. 392. When the intent with which an act was done is the gist of the action, the presumption is that every sane man contemplates and intends the necessary, natural, and probable consequences of his acts. People v. Sweeney, 22 V. W. Rep. 50. If one intends to do that which he is conscious the law forbids, no other evil intent need be shown. U.S. v. IIoughton, 14 Fed. Rep. 514. But wrong intent must be followed by a wicked act, to fall under the ban of the law. Id. When the proof shows that an unlawful act was done, the law presumes the intent, and a proof of the act being a violation of law is proof of the intent. U. S. v. Baldridge, 11 Fed. Rep. 552. And where the conduct of a debtor necessarily results in defrauding his creditors, he is presumed to have foreseen and intended such result. Gollober v. Martin, 6 Pac. Rep. 267.
Circumstances will be considered in connection with a coincidence in the date of an alleged fraudulent conveyance with the time of falling due of claims of a creditor or creditors. Gebhart v. Merfeld, 51 Md. 3:22. If a fraudulent intent can or must be inferred from all the circumstances of the case, the conveyance will be held to be fraudulent. Lyne v. Bank of Ky., 5 J. J. Marsh. 515; Constantine v. Twelves, 29 Ala. 607