ed debt of $1,000. Ninety-nine dollars and seventy cents of the plaintiff's claim was created after the deed and mortgage were executed, but no portion of the debt matured until after the transfers were made. Immediately after the deed was made, Joseph H. Gable began to purchase of divers persons, to fill his saloon with goods, on credit, and then gave his wife a chattel mortgage on all that was therein, leaving his debts unpaid. He began the saloon business on the 11th of October, 1890. The deed was made on the 15th day of October, 1890. On the 15th of December, 1890, he executed the chattel mortgage on all his personal property to his wife to secure a pretended sum of $1,000, and in less than a month thereafter she closed out the saloon and sold it for $1,000, and the business ceased. In the consideration of the question now before us, it will be borne in mind that appellants, by excepting to the special conclusions of law drawn by the court from the facts found, admit that the facts in the case are fully and correctly found. State v. Vogel, 117 Ind. 188-192, 19 N. E. 773.

A

The court found, as stated, that there was a mutual intention and design on the part of the appellants, as husband and wife, to cheat, hinder, delay, and defraud the appellee and other creditors, existing and subsequent. careful review of the evidence convinces us of the correctness of this finding. Appellee's being an existing creditor at the time of the execution of the deed and mortgage (section 1920, Rev. St. 1881; Burns' Rev. St. 1894, § 6645) makes all such transactions void as to the persons sought to be defrauded. If a deed is made and accepted for the fraudulent purpose of cheating, hindering, or delaying creditors, it may be overthrown, no matter what may have been the consideration paid therefor, or how pure the motive which induced it. Brittain v. Crowther, 4 C. C. A. 341, 54 Fed. 295. If the alienation is effected with such mutual design, the presence of the most bounteous or adequate price will not save or cure it. Wait, Fraud. Conv. (2d Ed.) $ 207, 208; Billings v. Russell, 101 N. Y. 226232, 4 N. E. 531; Boyd v. Turpin, 94 N. C. 137; Bradley v. Ragsdale, 64 Ala. 559; Gillespie v. Allen (W. Va.) 17 S. E. 184. conveyance by a debtor to his wife for a consideration greatly below its value will be wholly set aside. Bates v. Morris (Ala.) 13 South. 138. The protection and preservation of the rights of creditors is the fundamental policy of the law. Wait, Fraud. Conv. § 1. It is true, there is a line of cases affirming the doctrine that if the husband, without any fraudulent intention, in view of the amount and value of all his property, conveys by gift a portion of his property to his wife, he being solvent at the time, and retains a sufficient amount of it, subject to ordinary process, to liquidate his just debts, the court will uphold the deed. But it is otherwise when the debtor does not retain ample prop

So a

erty to pay his debts, that can be levied on by execution. Money in the hands of another, which the officer cannot possess, cannot be seized on execution. The creditor is not required to resort to any extraordinary remedy in aid of his claim, but may proceed against property fraudulently conveyed. Eiler v. Crull, 112 Ind. 319-321, 14 N. E. 79. It is settled, both on principle and on authority, to be sufficient to set aside the deed, as to existing and subsequent creditors, where the grantor, on account of the peculiar condition in which he finds himself placed, or the business in which he is about to engage, and in anticipation that he will or may incur debts which he may not wish to pay, or be compelled to pay, conveys his property, or causes it to be conveyed, for the purpose of preventing it from becoming subject to the payment of his debts when they shall accrue; and where the person who receives the conveyance has knowledge of or participates in the purpose for which it is made, such conveyance may be adjudged to be fraudulent as against subsequent creditors. He cannot legally or honestly in this manner provide for his family, and cast upon the creditors the hazards of his speculations. Carpenter v. Roe, 10 N. Y. 227-232; Reade v. Livingston, 3 Johns. Ch. 504; Parish v. Murphree, 13 How. 92; Plunkett v. Plunkett, 114 Ind. 484– 488, 16 N. E. 612, and 17 N. E. 562; Bishop v. Redmond, 83 Ind. 157. The presumption of fraud does not depend on the amount of the debt, or the extent of the property, or the circumstances of the party. To attempt to create such distinction would prove an inlet to fraud. 1 Story, Eq. Jur. § 359; Reade v. Livingston, 3 Johns. Ch. 501. It is evidently the law that a voluntary conveyance, where there is no consideration for a deed, is void as to creditors, although the grantee had no notice of the fraud. Barkley v. Tapp, 87 Ind. 25; Wright v. Nipple, 92 Ind. 310. A conveyance may be partially as well as entirely voluntary, although there is no actual intent to defraud. Yet if the price was so manifestly inadequate as to shock the moral sense, and create at once a suspicion of fraud, a court of equity will set aside the deed, and devote the excess to creditors, regarding the conveyance to the extent of the difference as voluntary. Bump, Fraud. Conv. § 232; Bates v. Morris (Ala.) 13 South. 138; Robinson v. Stewart, 10 N. Y. 189; Sexton v. Wheaton, 1 Am. Lead. Cas. 45; Van Wyck v. Seward, 18 Wend. 375; Norton v. Norton, 5 Cush. 524; Crumbaugh v. Kugler, 2 Ohio St. 373. So, a grossly inadequate consideration will render a contract fraudulent. Wait, Fraud. Conv. § 207. But, if the deed is actually fraudulent, it will be wholly set aside and the purchase", though he pays a consideration, has no protection. McCanles v. Smith (N. J. Ch.) 25 Atl. 211. The finding of the court shows that the most of the $1,000 the wife claimed to have loaned to her husband, and for which

the mortgage was given, was money he let her have for housekeeping purposes, and which she kept and secreted without his knowledge. This transaction was a gift, pure and simple, and the mortgage was fraudulent as to creditors. Granite Co. v. Ray (Ill. Sup.) 33 N. E. 31. Persons must be just before they are generous, and the law stamps a man's generosity with the name of fraud when it prevents him from acting fairly towards his creditors, and presumes fraud if he disables himself from paying his debts. In such cases the presumption of fraud arises and may exist without the imputation of moral turpitude. Bump, Fraud. Conv. p. 272. In this case a part of the money due her was from her husband, for labor. A conveyance by an insolvent husband to his wife in pursuance of a contract to compensate her for services is invalid and voidable, as against creditors. Wait, Fraud. Conv. § 218. It appears that she held no note or other written contract for the $1,000 she claimed against the husband, and for which the deed was given. In such case the burden of proof is upon her to establish the bona fides of the purchase; and it must be shown by clear and satisfactory evidence that it was for a valuable consideration, paid by her out of her separate estate, or by some other person for her. Wait, Fraud. Conv. 301. The evidence must also be free of suspicion. Kerr, Frauds, 200. We are persuaded, in the case at bar, that the appellants practiced a fraud upon the appellee in the transaction assailed and sought to be set aside, and have resorted to expedients to conceal the evidence of it. In such a case it is plainly the duty of a court of equity to pursue it in its tortuous course, and uncover and expose its tracks. We are of the opinion that the judgment of the court below is sustained by the evidence. Appellants urge that the special finding does not show that Joseph H. Gable had no other property subject to execution at the time of the conveyance to the wife of this real estate. We think the appellants are wrong in this contention. There is no error justifying a reversal, and the judgment is affirmed, with costs.

Mock & Simmons, Brownlee & Paulus, and Fauts & Waltz, for appellants. Morris, Bell, Barrett & Morris, for appellee.

HACKNEY, C. J. In the above entitled cases, the appellee sued the several appellants to enforce liens against the lots of said several appellants for the improvement of a part of Washington street, in the town of Hartford City, upon which improvement said several lots abutted. All of the questions involved in any one of said cases were presented, and determined adversely to the appellants by this court, in the case of Dowell v. Paving Co. (at the present term of this court) 38 N. E. 389. Upon the authority of that case the judgments severally in the above-entitled cases are in all things affirmed.

DAILEY, J., did not particip the consideration of these cases.

LAKE SHORE & M. S. RY. CO. v. MCINTOSH.1

(Supreme Court of Indiana. Nov. 1, 1894.) ACCIDENT AT RAILROAD CROSSING PROXIMATE CAUSE OBSTRUCTIONS - CONTRIBUTORY NEGLI GENCE-TRIAL EVIDENCE.

1. In an action for injuries at a railroad crossing, a charge that one of the subjects of inquiry was whether the injuries were caused by a collision, "as alleged in the complaint,” is not improper, where the jury are instructed that the other subjects of inquiry were the negli gence of defendant and the contributory negligence of plaintiff.

2. A charge, "you will inquire whether such injuries were produced by the negligence of the defendant, its servants, agents, or employés," is not objectionable, as meaning that an inquiry was whether the injuries were caused "by the negligence of defendant, or by its servants, agents, or employés."

3. A complaint which, after reciting the negligent construction and maintenance by a railway company of a crossing, and other negligent acts, alleges "that by reason of the unlawful negligence and wrongful acts and omissions of the defendant, as herein set out, the said deceased was run over and upon by said train at said crossing," sufficiently alleges that the injuries were in consequence of defendant's negligent construction and maintenance of the crossing.

4. A finding of a jury that a collision was the proximate cause of an injury will not affect facts found as to all other matters connected with the accident, as the court will draw the conclusion as to which one or more of such facts constitute the proximate cause of the injury.

5. An instruction that "the law requires, and all that it does require, is that a person approaching a railroad crossing upon a public highway shall use ordinary care to avoid injury," is proper, where it is explained that the care to be used must be in proportion to the danger.

6. Where it is claimed that the railroad crossing at which an accident occurred was in a dangerous condition, and that the fact was known to defendant, a charge that "if you find that defendant, for an unreasonable and unnecessary length of time, kept and maintained its crossing on the highway in an unsafe condition, then it was bound, in operating its railroad, to exercise proper care to prevent injury," is proper.

'Rehearing pending.

7. The negligence of a husband who is driving his wife over a railroad crossing, where she is injured, cannot be imputed to the wife.

8. Where, in constructing a crossing, the railroad company so encroached on the highway as to reduce its width from 60 to 13 feet, and allowed a ditch, washout, and broken culvert to remain in the highway, and the person driving decedent was, by reason thereof, unable to turn his horse so as to avoid a train, a charge that "negligence may be the proximate cause of an injury, of which it is not the sole or immediate cause. If the defendant negligently encroached upon and maintained obstructions in the highway at the crossing, which, concurring with the movement of a passing train, produced the collision resulting in the death of decedent, then such negligence would be the 'proximate cause' of such collision, within the meaning of that term, as used in these instructions," is proper.

9. It is the duty of a railroad company which constructs its lines across a highway to restore it to its former state, so far as possible.

10. If, by reason of the construction of a railroad crossing, it is made difficult of passage, the railroad company must use greater caution to prevent injuries to travelers on the crossing.

11. It is the duty of a railroad company to maintain highway crossings in a safe condition.

12. Where, at defendant's request, the court charges that, "if the approaching train could not be seen by deceased without looking backward, then it became her duty, before going on the crossing, to look back, and listen for the approaching train," defendant cannot complain because the court added, "and if its approach could have been learned by the exercise of reasonable care and diligence, under the circumstances, in time to avoid the injury, then plaintiff cannot recover," as the court rather added to the care imposed on decedent.

13. Where the court, at defendant's request, charged that "if the obstructions at the crossing were not in the traveled part of the highway, and if the collision was the proximate cause of the injury, then there could be no recovery," it was proper to add, "unless said obstructions were negligently maintained by the defendant, and were one of the causes which contributed to the collision resulting in the death of A. [decedent], without fault on her part."

14. After instructing the jury that they must try to reconcile any conflict of evidence, it is proper to add, "You will take into consideration the apparent intelligence of the witnesses; their apparent candor, or want of candor; the interest, if any, such witnesses may have in the result of the case," and "neither are you to find the fact true or proven or disproven simply because more witnesses have testified on one side than on the other."

15. Where no objection is made to a question until after it is answered, and no objection is made to the answer, a motion to strike out the question and answer should be denied.

16. It appeared that decedent was in a buggy driven by her husband; that they were both little acquainted with the surroundings; that they stopped 1,400 feet from the crossing, at the highest point of the road, and both looked and listened for the train; that decedent raised in the buggy, and looked backward and forward; that the horse was driven at a "jog trot," and the husband was a competent driver; that as they approached the crossing they kept looking and listening; that when about 150 feet from the crossing they again stopped, and looked and listened, and continued to look and listen as they approached the crossing; that they neither saw nor heard any indication of the train until they were on the narrow part of the crossing, when they saw the train 300 feet away, coming at the rate of 30 miles an hour; that the horse became frightened; and that they

were unable to turn, on account of obstructions placed on the highway by the railroad company. Held sufficient to sustain a verdict that dece dent was not guilty of contributory negligence. Appeal from circuit court, Steuben county; W. J. Davis, Special Judge.

Action by George McIntosh, administrator, against the Lake Shore & Michigan Southern Railway Company. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Morris, Bell, Barrett & Morris, for appellant. F. S. Roby, W. L. Penfield, and J. F. Shuman, for appellee.

HOWARD, J. This action was brought by the appellee to recover damages for the death of his intestate at a railway crossing over a public highway. The accident was caused, as alleged, by the negligent construction of the crossing, and the negligent running of appellant's train. The jury returned a general verdict for the appellee, and also answers to interrogatories. Of the errors assigned, but one is discussed in the briefs of counsel,the overruling of appellant's motion for a new trial.

Fault is first found with the instructions of the court. The second instruction requested by the appellee and given by the court was as follows: "This case presents three questions of fact, amongst others, for the consideration of the jury: (1) Was the death of Frances Anthony caused by injuries received by her on the 5th day of August, 1891, and produced by a locomotive and cars of the defendant coming in collision with the vehicle in which decedent was riding on said day, as alleged in the complaint? (2) Were such injuries of said decedent produced by the negligence of the defendant, its servants or its employés? (3) Did the negligence of said deceased woman contribute to such injuries and death?" Counsel say this instruction leaves it to the jury to determine the question of law as to what is alleged in the complaint; that it was the duty of the court to construe the complaint, and to tell the jury what was alleged. We think the court, in this instruction, distinctly informs the jury what the facts are, "as alleged in the complaint." The instruction is an exact copy, with change of names and dates, of instruction No. 4, as given by the court in Railroad Co. v. Stout, 53 Ind. 143, which was approved by this court.

Similar criticism is made by counsel of instruction No. 5, as requested by appellee and given by the court. Further objection is made to the following clause of this instruction: "You will inquire whether such injuries were produced by the negligence of the defendant, its agents, servants, or employés." Counsel gravely suggest that this requires the jury to say whether the injuries were caused "by the negligence of the defendant. or by its agents or servants or employés.” We do not think the words interpolated by

1

counsel were suggested to the mind of the jury by the language of the court. The company could act only by its officers, agents, servants, or employés. The instruction, evidently, and in the plainest language, refers to such instrumentalities, and not to independent action of agents and others for which the company would not be liable. Words in an instruction to a jury are to be taken in their plain and usual meaning. Verbal niceties and refined grammatical distinctions are not to be resorted to in such cases, provided the meaning of the language used is plain to a common intent.

The fourth instruction requested by the appellee and given by the court was as follows: "If you find from the evidence that Frances Anthony was killed by the negligence of the defendant in constructing or maintaining the crossing of the highway described in the complaint, or by reason of obstructions wrongfully placed or maintained in such highway by defendant, or by the negligence of the defendant's servants in the management of said train, and that the deceased was not guilty of negligence on her part contributing to the injury, and that her death was caused by the injury, and if you find the other material allegations of the complaint proven, then your verdict should be for the plaintiff." Much fault is found with this instruction. It is, however, almost identical with instruction No. 6 given in Railroad Co. v. Stout, supra, to which no objection was made. In objection to the instruction before us, it is first said that: "The complaint does not allege that the plaintiff's intestate was killed by the defendant's negligence in the construction of said crossing. On the contrary, it shows that the crossing was constructed many years before she was killed, and that she was not killed by its construction." We think counsel are mistaken in this. The complaint in fact sets out, very fully and in detail, various negligent acts of appellant in constructing and maintaining the crossing. It is alleged, amongst other things, "that said highway was not crossed at right angles by defendant's said railroad track at said place, but that defendant's said track had wrongfully, negligently, and unlawfully been constructed, and was by defendant, at all times herein named, unlawfully, wrongfully, and negligently maintained and kept in and along said highway, for a distance of two hundred and fifty feet." The particulars of such obstruction and negligent construction and maintenance of the crossing are set out at great length, and in detail: That a ditch over the crossing, from 4 to 6 feet deep and 4 feet wide, was maintained; that the earth from said ditch was banked up on the highway, thereby rendering the highway impassable, except for a space of about 10 feet, which was covered with planks, the obstruction extending east and west of the railroad track a distance of 20 feet; that a board fence was maintained by appellant in said highway 150

feet long, and extending from the east line of the highway to the center thereof, appellant using for its own purposes all of the highway east of the fence, and thus wrongfully reducing the width of the highway from 40 to 20 feet, and not leaving room for the public to pass in safety; that the appellant had suffered the roadbed of the highway. and the traveled part thereof, to be washed away into said ditch, thus making the roadway dangerous, and preventing vehicles from being turned away from the track and es caping from an approaching train after the same could be discovered; that appellant had permitted said washout to remain in said roadbed for a long time prior to the accident, with full knowledge of its dangerous condition; that appellant had planted a post in said highway 15 feet west of the track, there by preventing vehicles approaching the track from being turned therefrom in time to avoid an approaching train after it could be observed in coming from the north, the point from which appellee traveled; that appellant had unlawfully and negligently failed to restore said highway to its former state after its said track was constructed across the same, or so as not to impair its usefulness unnecessarily, or to injure its franchises, but wrongfully left and kept it in its narrow, obstructed condition, thus imperiling the lives of travelers upon the highway; that the highway north of the crossing descended towards the same rapidly, and because of the steep descent, and the smoothness of the roadway up to the railroad track, it became a matter of great difficulty to stop a vehicle approaching from the north until at or upon the track; that appellant had therefore wrongfully diverted said highway so that no opportunity was afforded a vehicle from the north to escape or turn from said track on discovering a train approaching; that the railroad track from the north approached the crossing through a deep cut, the embankment from either side of which wholly obscured and concealed the engine and cars from the view of a person upon the highway north of the crossing; that the train was further obscured by high grass, weeds, and bushes suffered to grow along the west side of said track by appellant, also by the board fence aforesaid; that the ground west of the track was covered with timber and growing trees, which still further concealed the approach of a train; that, from these causes, not only was the view of a train obscured, but also its sound deadened and broken, so that the engine and cars could not be seen or heard until very near the crossing; that the crossing was further rendered dangerous by the steepness of the grade north thereof, down which the approaching train came, so that it was difficult to avoid a high rate of speed over the same; that by reason of the things stated the crossing was a place of great danger to travelers lawfully approaching from the north, and using the highway with all care; that the appellant had

full notice of all these facts, and of the danger of surprising travelers upon the crossing, which danger had been frequently called to appellant's attention; that by reason of appellant's unlawful and negligent acts and omissions, as herein set out, appellee's decedent was prevented from discovering said approaching train; that by reason of the unlawful, negligent, and wrongful acts and omissions of the appellant, as herein set out, the said decedent was run over and upon by said train at said crossing, and, without fault or negligence upon her part, was bruised, crushed, and killed thereby. The complaint, therefore, does allege, and very fully, that appellee's intestate was killed by appellant's negligence in the construction and maintenance of the crossing. The fact that the crossing was negligently constructed many years before the injury, and so maintained by appellant, cannot lessen, but on the contrary must increase, the liability of appellant. Even if the crossing had been constructed by former owners of the railroad, the present owners, still maintaining and using the same negligently constructed crossing, would be liable for the wrong. Railway Co. v. Boney, 117 Ind. 501, 20 N. E. 432; 1 Ror. R. R. p. 38; Beach, Ry. Law, § 553; 2 Wood, Ry. Law, 977-980; Pettis v. Johnson, 56 Ind. 149.

It is further objected to this fourth instruction that it is not alleged in the complaint that the intestate was killed by the maintaining of the negligently constructed crossing. We think, from the brief abstract above set out from the complaint, that counsel are also in error in this claim.

Another reason given for this contention is that the allegation of the complaint is that she was killed by the collision, and that the jury so find, in answer to an interrogatory. Such argument can hardly be called candid. It is, of course, true that the injury was directly caused by the collision; but if the collision was itself brought about, in part or in whole, by the negligent construction of the crossing, that would not in any manner exculpate appellant. As a matter of fact, however, the complaint, after reciting the many details of the negligent construction and maintenance of the crossing, and other negligent acts of appellant in the premises, alleges "that by reason of the unlawful, negligent, and wrongful acts and omissions of the defendant, as herein set out, the said decedent was run over and upon by said train at said crossing, and, without fault or negligence upon her part, was bruised, crushed, and killed thereby." This is a sufficient allegation that the decedent was killed in consequence of appellant's negligent construction and maintenance of the crossing. Beach, Contrib. Neg. (2d Ed.) § 32, note; Schultz v. Moon, 33 Mo. App. 329. So, to the answer of the jury to the interrogatory finding that the collision was the proximate cause of the injury, it may be sufficient to say that this was but a conclusion, and cannot affect the facts

found as to all matters connected with the accident. It was for the jury to find the facts showing the condition of the crossing and surroundings, and everything else necessary in relation to the manner in which the injury was brought about; but it was for the court to draw the conclusion as to what one or more of such facts, if any, constituted the proximate cause or causes of the death of the intestate. Railway Co. v. Buck, 116 Ind. 566, 19 N. E. 453.

As to that clause of the instruction, "and, if you find the other material allegations of the complaint proven, then your verdict should be for the plaintiff," it may be sufficient to say that, even if erroneous, it could not harm appellant. To require that the jury should find additional facts proven before they were justified in finding for appellee, must be an instruction in favor of appellant. Appellant is therefore in no position to question the correctness of this part of the instruction.

Counsel for appellant complain of the following clause in the fifth instruction requested by appellee and given by the court: "The law requires, and all that it does require is, that a person approaching a railroad crossing upon a public highway shall use ordinary care to avoid injury." This clause, though thus arbitrarily torn from its proper connection in the instruction, is strictly the law. Taken by itself, it might be said not to be full enough, and might be misunderstood. But taken in the connection where it is found, and particularly when read with the other instructions, as it must be, it is quite correct. It is ordinary-not extraordinary or unusual-care that must be taken. It should be "such care as men of common prudence and intelligence would ordinarily use under like circumstances. The amount of care required depended upon the risk of danger. In short, the obligations, rights, and duties of railroads and travelers upon highways crossing them are mutual and reciprocal, and no greater degree of care is required of the one than the other." These words, found in the eighteenth instruction requested by appellee and given by the court, show what is meant by "ordinary care," as used in the clause of the fifth instruction complained of. In the fifteenth of these instructions, also, the jury are told that, "when a person crossing a railroad track is struck and injured by a collision with a passing train, the fault is prima facie his own." In the fourteenth instruction the jury are again told that the traveler must use "such care and caution as an ordinarily prudent person, under like circumstances, would have used." Ordinary care is all that can be required, and if these terms needed any explanation, as that the care should be in proportion to the danger, that explanation was fully made in the remainder of the fifth and in other instructions given. Railway Co. v. Harrington, 131 Ind. 426, 30 N. E. 37.