creditors and others of their just and lawful actions, suits, debts, damages, &c., shall be deemed only as against those persons, their heirs, successors, executors, administrators and assigns, whose actions, &c., are delayed or defrauded, utterly void: with a proviso, that this shall not extend to any estate or interest, upon good consideration and bona fide, lawfully conveyed or assured to any person, not having at the time, any manner of notice or knowledge of such fraud. By statute, 27 Elizabeth, c. 4, every conveyance, grant, estate, charge, incumbrance and limitation of uses, of, in, or out of lands, had or made for the intent and of purpose to defraud such as have purchased or shall purchase the same, or any rent, profit or commodity in or out of them, is, only as against those persons, their heirs, &c., and all claiming through them who have purchased, or shall so purchase, for money or other good consideration, utterly void; with a proviso, that this shall not defeat any conveyance, &c., made upon good consideration and bona fide.

At common law, previously to these statutes, every conveyance fraudulent in fact was void as against the interest attempted to be defrauded; but, fraud, then, was always a question of fact for the jury, (1) and only, existing and not subsequent creditors and purchasers, could avoid such conveyances.(2)

But it is not to be supposed that, now, in cases of fraud not within these statutes, courts of law or equity are limited by the bounds of the common law as it was understood before these statutes; on the contrary, the same principles essentially are applicable in cases of fraud not within these statutes, as in cases that fall strictly within them; (3) and this is what is meant by the remark of Lord Mansfield in Cadogan v. Kennett, Cowper, 434, that "The principles and rules of common law, as now universally known and understood, are so strong against fraud in every shape, that the common law would have attained every end proposed by the statutes 13 El. c. 5, and 27 El. c. 4:" an opinion generally assented to.(4)

Under the former of these statutes, the distinction established in Sexton v. Wheaton, between previous and subsequent creditors, is universally received; *and while, as against the latter, a convey*37] ance is not void unless actually fraudulent, it is admitted to be a general principle in the courts of this country (except New York, where fraud is always a question of fact) that as against creditors existing at

(1) Avery v. Street, 6 Watts, 247, 248.

(2) Doyle, &c., v. Sleeper, &c., 1 Dana, 531, 533; O'Daniel v. Crawford, 4 Devereux, 197, 203.

(3) Taylor v. The Executor of Heriot, 4 Dessaussure, 227, 234; Whittlesy v. McMahon, 10 Connecticut, 138, 141; Howard v. Williams, 1 Bailey, 575, 580.

(4) Hamilton v. Russell, 1 Cranch, 309, 316; Wilt v. Franklin, 1 Binney, 502, 514, 523; Hudnal v. Wilder, 4 McCord, 295, 297. See the discussion in Adams v. Broughton, Adm'r, 13 Alabama, 731, 789.

the time of the conveyance, a voluntary conveyance is fraudulent in law, and void; but there is some diversity in the different States, as to the degree of strictness with which this general principle is to be applied. In the celebrated case of Reade v. Livingston, 3 Johnson's Chancery, 481, 500, it was declared that the rule had no qualifications whatever, and that a voluntary conveyance is fraudulent in respect to existing debts, by presumption of law, without regard to the amount of the debts, the extent of the property in settlement, or the circumstances of the party: and this strict rule, though now abolished in New York, prevails in Alabama and North Carolina,(1) and apparently in Mississippi, (2) and in Illinois. (3) In South Carolina, some exceptions are admitted to this rule, but the latter cases limit them very narrowly; a voluntary conveyance is held to be void against existing creditors, except where the indebtedness is utterly inconsiderable when compared with the donor's property, such as that which is contracted for the current expenses of a family.(4) Elsewhere, however, though the general principle is admitted, that a voluntary conveyance is void against existing creditors;(5) and that in all cases of this kind the question is one of law;(6) yet it is subject to the modification established by Salmon v. Bennett; that a voluntary conveyance to a child by a father who is not at the time in embarrassed circumstances, if the conveyance be not more than a reasonable provision for the child, considering the grantor's circumstances and position, and if other property be retained amply sufficient beyond all doubt to pay all the grantor's debts, is not fraudulent; the matter, in the case of a child, being thus made a question of reasonable tendency, and convenient, practicable justice, and depending on the ability of the debtor, at

(1) Miller v. Thompson, 3 Porter, 196; Moore v. Spence, 6 Judges' Alabama, 506; Costillo & Keho v. Thompson, 9 Id. 937, 945; Foote and Wife v. Cobb, 18 Alab. 586 (though in this last case it does not appear what the debtor's general circumstances were); O'Daniel v. Crawford, 4 Devereux, 197; Kissam . Edmundson et al., 1 Iredell's Equity, 180.

(2) Bogard v. Gardley, 4 Smedes & Marshall, 302, 310.

(3) Choteau v. Jones, 11 Illinois, 318.

(4) Izard v. Izard, 1 Bailey's Equity, 228, 236; Beckham and Wife v. Secrest, 2 Richardson's Equity, 54; Davidson & Simpson v. Graves, Riley's Chancery, 219, 234; McElwee v. Sutton, 2 Bailey, 128, 130; Cordery v. Zealy, Id. 206, 208, and see Ingram v. Phillips, 5 Strobhart, 200.

(5) Chapin v. Pease, 10 Connecticut, 69, 73; Parsons v. McKnight, 8 New Hampshire, 35; Carlisle v. Rich, Id. 44; Smith v. Smith, 11 Id. 460, 465; Hoye v. Penn, 1 Bland, 29, 32; Bank of United States v. Enuis & Sandige, Wright, 605; Gunn v. Butler, 18 Pickering, 248; Howe . Ward, 4 Greenleaf, 195; Emery v. Vinall, 26 Maine, 295, 305; Hunters v. Waite, 3 Grattan, 26; Cosby, &c., v. Ross' Adm'r, 3 J. J. Marshall, 290; Thomas . Degraffenreid, 17 Alabama, 603, 611; Easley v. Dye, 14 Id. 159, 163; High et al. v. Nelms, Id. 350; Corprew ». Arthur et als., 15 Id. 525, 528.

(6) Beers v. Botsford, 13 Connecticut, 146, 154; Sherwood v. Marwick, 5 Greenleaf, 295, 302; Gardiner Bank v. Wheaton et al., 8 Id. 373, 381; see also Jones v. Spear & Tr., 21 Vermont, 426, 431; and Sturdivant v. Davis, 9 Iredell, 365.

the time, to withdraw the amount of the donation from his estate, without the least probable hazard to his creditors, or in any material degree lessening their then prospect of payment.(1) In some of the States in which the general rule has been adopted, as *Massachusetts and *38] Maine, no occasion has arisen requiring the exception to be defined. In the Federal courts, the same exception to the generality of the rule may be considered as established; the dicta, indeed in Sexton v. Wheaton, and in Ridgeway v. Underwood, 4 Washington, 129, 137, are without limitation, that every voluntary conveyance is fraudulent as against existing creditors, because voluntary; and in Backhouse's Administrator v. Jett's Administrator et al., 1 Brockenbrough, 510, 511, it was decided, that a conveyance of half his estate by a father to his son as an advancement, though there was no suspicion whatever of fraud or bad faith, was void in law as against a prior creditor; yet in Hopkirk v. Randolph et al., 2 Id. 132, the difference was recognized by Marshall, C. J., between a general principle, and one universal in its application, and so inflexible as to admit no case to be withdrawn from its operation; and he upheld a gift of two slaves and a riding-horse by a father in prosperous circumstances to his daughter, on the ground that a customary and inconsiderable gift from a parent to a child of such slight value as to come under the name of a present, could not be considered as falling within the terms or the reason of the rule against fraudulent conveyances; and the remarks made by this great judge, pp. 137, 138, upon the construction proper to be put upon the statute, were the matter unclogged by authorities, may be regarded as an unanswerable vindication of the exception or modification above noted, on grounds of reason, convenience and equity, against the stringency of Reade v. Livingston. See a similar view of fraud, under the bankrupt law, In the matter of Grant, 2 Story, 313, 319. The case of Hinde's Lessee v. Longworth, 11 Wheaton, 199, has been erroneously supposed in some of the discussions in New York, to have laid down a new doctrine, that fraud was in relation to all creditors, a question of fact for the jury: in

(1) Salmon v. Bennett; Abbe v. Newton, 19 Connecticut, 20, 27; Kipp v. Hanna, 2 Bland, 26, 33; Posten v. Posten, 4 Wharton, 27, 42; Miller v. Pearce, 6 Watt & Sergeant, 97, 401 (and see Kimmel v. McRight, 2 Barr, 38; also Sanders v. Wagonseller, 91 Penna. State, 250); Bracket et ux. v. Waite et al., 4 Vermont, 389; Smith v. Lowell, 6 New Hampshire, 67, 69; Brice v. Myers et al., 5 Ohio, 121, 125; Miller and others v. Wilson and others, 14 Id., 108, 114; Dodd v. McCraw, 3 English, 84, 105; Smith v. Yell, Id. 470, 475; Worthington & Anderson v. Shipley, 5 Gill. 449; Trimble v. Ratcliff, 9 B. Monroe, 511, 514; Burkey v. Self, 3 Sneed, 124; Huston's Adm'r v. Cantril et al., 11 Leigh, 137, 159, and Hutchinson et al. v. Kelly, 1 Robinson's Virginia, 125, in which cases, Tucker, P., and Baldwin, J., were in favor of this exception, against Stanard, J., who held to the strict rule of Reade v. Livingston. See again the discussions in Hunters v. Waite, 3 Grattan, 26; and the remarks of Leigh, C., in Wilson v. Buchanan, 7 Id. 340; Williams v. Banks, 11 Maryland, 198; and particularly Thacker v. Sanders, 1 Busbee's Equity, 146.

that case, the creditor relied upon evidence of fraud in fact, and did so, either because, as there was evidence to show, the conveyance was not voluntary, but upon a consideration of indebtedness, or because, as was stated by counsel, the statute 13 Eliz. c. 5, was not in force in the State in which this transaction took place, or because the creditor was a subsequent one, for though copies of accounts spread upon the record and brought into the Supreme Court, showed that the cause of action had arisen before the conveyance, yet, below, these accounts were not evidence, and nothing was exhibited but the record of the subsequent judgment: it was in reference solely to the admissibility of evidence of the grantor's condition, for the purpose of rebutting the evidence of actual fraud, that the court said, per Thompson, J., that a voluntary deed to a child is only a presumption and badge of fraud, which may be rebutted by evidence to the *jury of the grantor's circumstances; and in [*39 another part of the opinion the principle of Sexton v. Wheaton is assented to as the law of the court: the case in fact has no bearing whatever upon the validity of voluntary conveyances in point of law as against previous creditors.(1) In New York, in Jackson ex. dem. Van Wyck v. Seward, 5 Cowen, 67, the principle of Reade v. Livingston, was approved and applied by the Supreme Court, and a conveyance to children, which the court considered voluntary, was adjudged fraudulent in law and void against a prior creditor; but this decision was reversed almost unanimously in the Court of Errors, 8 Cowen, 407; two of the senators, Spencer and Allen, maintaining that fraud is always a matter of fact, and that there is no such thing as fraud in law. This point being complicated with some others in that case, there has been some dispute as to what principle was settled by that decision of the Court of Errors; but, notwithstanding the doubts of Bronson, J., and Tracy, senator, in Van Wyck v. Seward, 18 Wendell, 375, 393, 405, and of Walworth, C., in Hanford v. Artcher, 3 Hill's N. Y. 273, 280, as to what was adjudicated in that case, it has been agreed in all the courts of that State, that by that decision, the distinction between fraud in fact and in law was exploded, and that the question is in all cases one of fact for the jury, the circumstance that the deed is voluntary being merely prima facie evidence of fraud. This was the principle and practice adopted by the Supreme Court afterwards, in Jackson ex. dem. Peek and Maybee v. Peek, 4 Wendell, 301, and Jackson ex. dem. Bigelow v. Timmerman, 7 Id. 436; S. C. 12 Id. 299; by the vice-chancellor and chancellor, in Van Wyck v. Seward, 1 Edwards, 327; S. C. 6 Paige, 62, upon a bill filed after the decision in the Court of Errors, to set aside the conveyance as voluntary and fraudulent; and by the Court of Errors in S. C. on appeal, 18 Wendell, 375, notwithstanding the earnest arguments of Bronson, J., to the contrary. The principle of fraudulent intent in con(1) See also Clarke et al. v. White, 12 Peters, 179, 198.

veyances is in all cases a question of fact, and that no conveyance is to be adjudged fraudulent solely on the ground that it is not founded on a valuable consideration, is now enacted by the Revised Statutes, vol. 2, p. 137, tit. 3, s. 4; but it is evident that it had previously been established as a common law rule, by the first decision of the Court of Errors in Seward v. Jackson, 8 Cowen, 407. These attempts, however, to reduce fraud in all cases to a matter of actual intention, are not only opposed to all principle and authority, to common justice and to common sense, but have been frustrated by the very forms and constitutions of the courts, and cannot be successful until the respective functions of the judge and jury are changed; for the court obviously possesses the same control over the subject in the form of a direction to the jury as to the force of presumptions on a question of fraudulent intent, as they formerly exercised through the medium of a peculiar definition of fraud, and to prevent irregularity and injustice, this control must be exercised. And this practice is established, by Vance v. Phillips, 6 Hill, 433, where it is decided that though the question of fraudulent intent is now one of fact for the jury, yet if the jury come to a wrong conclusion on the subject, the verdict will be set aside as against the weight of evidence; so that after all the discussions and legislation on the subject in New York, the result, according to Bronson, J., (whose conduct, on this whole subject, is deserving of high commendation) is, that *" the road *40] to justice may be longer, and consequently more expensive than it was before, but it ends in the same place." In equity, also, since the Revised Statutes, though the answer deny a fraudulent intent, fraud may be legally inferred from the circumstances of the case. Cunningham v. Freeborn, 3 Paige, 557; S. C. on error, 11 Wendell, 241.

Against subsequent creditors, as is decided in Sexton v. Wheaton, a conveyance is not void unless actually fraudulent.(1) But there is a little obscurity as to what are the frauds of which they might take advantage. If the fraud be directed specifically against subsequent creditors, that is, if a voluntary settlement be made with a view to becoming subsequently indebted, which may be inferred from the fact of debts being contracted immediately after, there is no doubt that the settlement may be avoided by subsequent creditors.(2) But that is not the only sort of fraud that may be taken advantage of by subsequent

(1) Bennett v. Bedford Bank, 11 Massachusetts, 421; Benton v. Jones, 8 Connecticut, 186; Carlisle v. Rich, 8 New Hampshire, 44, 50; Blake v. Jones, 1 Bailey's Equity, 143, 143; Cosby, &c., v. Ross' Adm'r, 3 J. J. Marshall, 290; Miller v. Thompson, 3 Porter, 196; Bogard v. Gardley, 4 Smedes & Marshall, 302, 310; Wood v. Savage, 2 Douglass, 317, 325; Ingrem v. Phillips et al., 3 Strobhart, 565; Greenfield's Estate, 2 Harris, 489, 502; Nicholas v. Ward, 1 Head, 323; Thomas v. Degraffenreid, 17 Alabama, 603, 611. (3) Sexton v. Wheaton; Wood v. Savage; Ridgeway v. Underwood, 4 Washington, 129, 137; Madden v. Day, 1 Bailey, 837, 340; Hutchinson et al. v. Kelly, 1 Robinson's Virginia, 125, 134; Miller v. Miller, 23 Maine, 22, 24; Kipp v. Hanna, 2 Bland, 26, 34.