days, and his counsel claimed that his talent, energy, industry, ability, and enterprise were at least worth $5 per day. After a thorough examination of all the testimony bearing upon this point, I fail to discover sufficient testimony to warrant the conclusion of counsel that respondent employed complainant to perform any such service, or any facts that would justify the court in allowing this claim. Without attempting to review the testimony, it is enough to say that the facts in relation to this charge are, in my judgment, sufficient to warrant the contention of respondent's counsel that this charge was an after-thought upon the part of complainant. No claim whatever was made by complainant in this respect for any services rendered prior to the agreement of 1883 at the time that agreement was made, and no demand of this kind was ever made upon respondent until after the bringing of this suit. On the other hand, the record shows, and complainant admits, that respondent, after December 26, 1882, advanced various sums of money, amounting in the aggregate to over $500, for personal expenses, and this is all that complainant asked for in relation to this matter before the commencement of this suit. Prior to December 26, 1882, respondent had advanced to complainant various sums amounting to over $4,000, and after the execution of the agreement he paid a judgment against complainant for $656. The total amount of money that complainant individually received from respondent prior to the formation of the corporation was over $5,000. Respondent has never made any claim for his services, and under the agreements between the parties all that either could legally claim would be for the actual expenses incurred in traveling to and fro in conducting the business of the joint enterprise. The account rendered by complainant, as above stated, is disallowed. Respondent's conduct after the agreement of 1883 is by no means free from criticism. His stubbornness and delay in paying off a portion of the indebtedness then existing against the property is sufficient to authorize a court of equity to decree that he should be held responsible for his proportion of the costs in this action. The judgment and decree of this court is that the deed from complainant to respondent, executed April 8, 1881, for an undivided one-half interest in the property, is valid; that the decree prayed for by complainant for a reconveyance of said property be denied; that the note and mortgage executed and delivered by complainant to respondent on the 15th day of October, 1883, is valid; that the decree prayed for by complainant to cancel said note and mortgage be denied; that each party to this suit pay his own costs. Let a decree be entered accordingly.

METROPOLITAN NAT. BANK v. ROGERS et al.

(Circuit Court, W. D. Pennsylvania. July 31, 1891.)

1. FRAUDULENT CONVEYANCE TO WIFE-EVIDENCE.

This suit to set aside a voluntary settlement by a husband upon his wife was brought by his assignees in bankruptcy, and later was prosecuted by one to whom the assignees conveyed pendente lite. The proofs examined, and conclusion reached that the transaction was free from fraud, and not impeachable by the assignees or their vendee.

2 SAME-LACHES.

The plaintiffs' sluggishness in pressing the suit, and their great delay in bringing the cause to final hearing, criticised unfavorably.

3. SAME RIGHTS OF CREDITORS.

Where a voluntary conveyance of real estate by a husband to his wife and its subsequent improvement by him were without actual fraud, and there was no intention to delay or hinder the creditors of the husband, only his existing creditors had a right to assail the conveyance.

4. SAME-IMPROVEMENT OF PROPERTY CONVEYED.

Where, by a voluntary conveyance by a husband to his wife, she acquired a valid title to land, expenditures made bona fide by the husband more than a year afterwards in its improvement could not have the effect of changing the ownership in whole or in part, although 18 months later he was adjudged a bankrupt.

5. SAME.

Where such expenditures were made by the husband without fraudulent intent towards his creditors, and were innocently acquiesced in by the wife, there is no ground for fastening a charge on the land for the value of the improvements upon a bill filed by the husband's assignees in bankruptcy.

In Equity.

Bill by the Metropolitan National Bank against Mary Ann Rogers and others to set aside a conveyance of land as in fraud of the grantor's creditors.

C. C. Dickey and James Bredin, for complainant.

William L. Chalfant, for defendants.

ACHESON, J. The purpose of this suit is to set aside as fraudulent as against creditors a deed of conveyance of real estate made by William Rogers and Thomas J. Burchfield to Mary Ann Rogers, (wife of William Rogers,) dated July 8, 1872, acknowledged by the grantors, respectively, on July 29 and August 2, 1872, and duly recorded May 10, 1873. This real estate consists of 10 acres of land situate in Armstrong county, Pa. The original plaintiffs in the suit were the assignees in bankruptcy of the grantors. The present plaintiff, the Metropolitan National Bank, acquired title pendente lite by deed from said assignees.

In looking into this record we are at once struck with the plaintiffs' sluggishness in prosecuting the suit, and their extraordinary delay in bringing the cause to a final hearing. A brief recital of the proceedings will make this plain. William Rogers and Thomas J. Burchfield, who had been copartners under the firm name of Rogers & Burchfield in the business of manufacturing sheet-iron and iron in other forms, upon their petition filed November 1, 1875, were adjudged bankrupts, and in the course of a few weeks their assignees were chosen and qualified. Undoubtedly the assignees immediately after their appointment knew all

the facts connected with the title of Mrs. Rogers to the real estate here in dispute, yet their bill in this case was not filed until December 14, 1877, only six days before the bar of the statute of limitations (section 5057, Rev. St.) would have protected her effectually. The answer of Mrs. Rogers and her husband to the bill, which was under oath, and traversed all the material allegations upon which the plaintiffs' right to relief rested, was filed May 28, 1878. The plaintiffs filed their replication December 24, 1878, and then procured the appointment of an examiner. Here the case long rested. Without having taken any testimony, the assignees in bankruptcy, on June 20, 1879, exposed this real estate to public sale, and sold their title to the Metropolitan National Bank for $1,200. A conveyance, however, by the assignees to the bank was not made until May 31, 1881. The first active movement on the part of the plaintiffs in pushing the suit was made so late as July 14, 1883, when they proceeded to have the deposition of Thomas J. Burchfield taken. It was filed August 27, 1883. Not until January 7, 1886, did the Metropolitan National Bank take any step to intervene in the suit. On June 2, 1886, an order was made, allowing the bank to file a supplemental bill. On February 17, 1888, more than 10 years after the original bill was filed, the plaintiff bank formally closed its proofs in chief. The defendants commenced to take their proofs on May 7, 1888, and continued so doing from time to time. While thus engaged, the plaintiff bank on March 11, 1889, resumed the taking of testimony, calling before the examiner Thomas J. Burchfield, and re-examining him at length. His testimony thus taken, although upon the same matters, is more unfavorable to Mrs. Rogers than was his original deposition. So, too, the bank, at this stage of the case, recalled and re-examined their witness S. M. Jackson. The bank also here examined other witnesses. In some instances this evidence is styled "rebuttal," but in the main it was really evidence in chief. It is upon this testimony, thus introduced out of order, and taken nearly 12 years after the suit was brought, and more than 16 years after the transactions under investigation occurred, the bank now mainly relies to defeat Mrs. Rogers' title. No reason is assigned why the witnesses could not all have been examined at an early date after suit brought. The defendants resumed the taking of their proofs on March 25, and closed them on June 16, 1890. The testimony taken by the examiner was filed October 20, 1890, and the cause was brought on for final hearing in February, 1891. Now, it is true that it was in the power of Mrs. Rogers to speed the cause by enforcing the rules of court. But she was in possession of the land, and repose on her part was natural. The assignees in bankruptcy in the first instance, and then their vendee, the bank, were the actors, and the duty of promptitude was upon them. Their needless and unreasonable delay may not, indeed, conclude the bank; but a court of equity may well incline to look with some disfavor upon a claim so haltingly pursued, and now depending so much on the uncertain recollection of witnesses as to remote events.

The bill of complaint, after setting forth the proceedings in bankruptcy, and reciting the conveyance on or about July 8, 1872, of said real estate to Mrs. Rogers, alleges that the deed therefor was without consideration other than the recited nominal consideration of one dollar; that, subsequently to its date, a dwelling-house was erected and improvements made on the land at a cost of about $15,000; that this cost was paid out of the funds of Rogers & Burchfield, and on the books of the firm was charged to the individual account of William Rogers; that at the date of the deed, and at the time when the house was built and improvements made, the firm was extensively engaged in the manufacture and sale of iron; that this business was hazardous, and one in which the firm was necessarily obliged constantly to incur large debts and run great risks; that the firm "was largely indebted at the date of said deed, and so continued until on or about the 1st day of November, A. D. 1875, when it became insolvent;" that shortly before the adjudication in bankruptcy, and at a time when the said firm and William Rogers individually were hopelessly involved, he, (Rogers,) by a quitclaim deed dated May 31, 1875, and recorded July 27, 1875, conveyed to his wife his interest in said real estate without consideration therefor; and the bill then avers "that as your orators are advised, the said deeds are wholly void as to creditors, and in fraud of their rights; and by reason of said deeds your orators have been unable to sell said real estate at anything like its value, whereby the creditors of said bankrupts have been hindered and delayed in the collection of their just claims." This is the whole substance of the plaintiffs' case as set out in the bill. It is to be carefully noticed that the bill does not charge any actual fraud in the transactions complained of. The allegation (if it can be so called) just quoted, that "the said deeds are wholly void as to the creditors, and in fraud of their rights," is a mere legal conclusion, unwarranted by the facts stated; and even in making this suggestion of constructive fraud the assignees cautiously state that they are so "advised." There is no allegation in the bill that the deed of 1872 was made or the land improved with any intent to delay, hinder, or defraud creditors of the grantors, existing or future. Nor is it alleged that the firm of Rogers & Burchfield, or either of the individual members, was insolvent or embarrassed when the deed of 1872 was executed, or when the house was erected and the other improvements were made. All that the bill asserts is that at the date of that deed the firm was "largely indebted," and "so continued" until about November 1, 1875, "when it became insolvent." But this is entirely consistent with solvency in July, 1872. Neither does the allegation of continued indebtedness from July, 1872, until the insolvency and bankruptcy in November, 1875, imply that any debt which existed at the time of the conveyance of the land remained unpaid on November 1, 1875, and certainly the bill does not expressly so charge. True, it is averred that, when the quitclaim deed of 1875 was executed, "both said firm and William Rogers were hopelessly involved;" but it is quite clear that the quitclaim deed was a matter of no moment whatever. It was made merely to cure a supposed defect in Mrs. Rogers' title, arising from the fact that by the deed of

1872 Rogers conveyed directly to his wife, without the intervention of a trustee; but, undoubtedly, the earlier deed of the husband was effective, and passed to the wife a substantially good title. Thompson v. Allen, 103 Pa. St. 44; Jones v. Clifton, 101 U. S. 225. Therefore the title of Mrs. Rogers to the land in dispute is to be regarded as having vested in her at least as early as August 2, 1872, the date when the deed was perfected by the acknowledgment of Thomas J. Burchfield. If, then, we confine our attention to the bill of complaint alone, it may confidently be affirmed, upon the authority of Warren v. Moody, 122 U. S. 132, 7 Sup. Ct. Rep. 1063, and Adams v. Collier, 122 U. S. 382, 7 Sup. Ct. Rep. 1208, that no ground is thereby disclosed to sustain a decree against Mrs. Rogers. In the last-cited case (page 390, 122 U. S., and page 1211, 7 Sup. Ct. Rep.) the court says:

"If the grantor was insolvent when he made the conveyance of 1863, or if the lands so conveyed constituted more, in value, of his estate than he could rightfully withdraw from the reach of creditors and give to his children, in either case the assignee in bankruptcy-there being no fraud on the part of the grantor-has no standing to impeach the conveyance. The deed was good as between the grantor and his children; and, in the absence of fraud, could not be questioned by the assignee, who took only such rights as the bankrupt had. Yeatman v. Savings Inst., 95 U. S. 764, 766; Stewart v. Platt, 101 U. S. 731, 738; Hauselt v. Harrison, 105 U. S. 401, 406; Rev. St. § 5046. It could only be avoided by creditors who were such at the date of the conveyance." Citing Warren v. Moody, supra.

Now the Metropolitan National Bank was not a creditor of Rogers & Burchfield, or of either partner, at the date of the conveyance to Mrs. Rogers, but first became such creditor in August, 1875; and the bank is clothed with such rights only as the assignees had under the bankrupt law to contest the validity of the deed to Mrs. Rogers. Crawford v. Halsey, 124 U. S. 648, 8 Sup. Ct. Rep. 641. Here, then, the case might be rested. But when we go outside of the bill of complaint, and consider the proofs, the substantial merits of the case are found to be with Mrs. Rogers. It appears that by the original articles of copartnership of Rogers & Burchfield, entered into August 18, 1866, William Rogers was to turn or to keep dressed to proper shape the rolls used in the manufacture of sheet-iron, and in consideration of that service he was to occupy, free of rent, one of the houses of the firm. In the year 1872 that arrangement was modified to the pecuniary advantage of the firm, Rogers agreeing to surrender the house to the firm, and, in lieu thereof, the firm agreeing to convey to him in fee 10 acres of farm land. Under this new agreement, and by request of Mr. Rogers, the conveyance of the 10 acres of land (the property in dispute) was made to his wife by the deed of July 8, 1872. The land was only of the value of $50 an acre, including underlying coal; but the coal was excepted out of the grant to Mrs. Rogers. On July 22, 1873, William Rogers entered into a contract with Dickey & Sons, builders, for the erection on the land of a house, the contractors to furnish all materials and labor, for the sum of $13,800, and to complete the work by April 1, 1874. The house was begun early in August, 1873, and was erected under that