buttal that Mrs. Eppink admitted that she owned one 40 of the property which adjoined that of a Mrs. Boerts, and that she also owned 80 acres on the other side. When asked if she wanted to sell the property, she said that she didn't know, and then spoke about her son having trouble with L. Starks Company; that she said in reality she owned the property, but that her son had got into trouble with the Starks people and they were trying to get the land away from her, but to save it she had deeded it to her daughter, Sena Taylor, who lived in Chicago; that the property was really hers, but she would have to get a deed from Mrs. Taylor; and that she had turned her property over to Sena Taylor to keep L. Starks Company from doing her out of it.

It appeared that this deed was given to, or taken by, Mr. Shreve when he was at Mrs. Eppink's. He further testified that he had a talk with Mrs. Taylor in Chicago, in which she said that she thought it would be best for them to sell a part or all of the property, and that she was willing to do whatever her mother desired her to do in the case, and that this was repeated a number of times.

There is much more of the testimony of this witness from which it appears that a deed with the name of the grantee in blank had been sent by Mrs. Taylor from Chicago to Mrs. Eppink in contemplation of a sale of the property. Much of the testimony of the man Shreve was denied by Mrs. Taylor and her mother. Mrs. Taylor admitted that he had called upon her in Chicago and had claimed that he wanted to buy, especially the property adjoining Mrs. Boerts. She denied, however, that she had ever talked to Mr. Shreve about the complainant. She was unable to state how many acres she got by the purchase, or how much land was embraced in any of the descriptions mentioned in the deed. When asked how many

185 Mich.-16.

acres she got by the deed, she answered: "I couldn't tell; I got all that my mother had anyway." She stated, when asked what the property was worth, that she did not know anything about the value of the land. John B. Eppink testified, upon cross-examination, that some of it was worth $20 or $25 an acre, but that on an average perhaps $10 an acre, and that the three lots were worth about $200.

By authority of section 10203, 3 Comp. Laws (section 12864, 5 How. Stat. [2d Ed.]), after the complainant had made its prima facie case, the burden was then cast upon the defendants to show that the transaction was in all respects bona fide.

Was this property conveyed for the purpose of hindering, delaying, or defrauding this complainant? That such was the purpose of Tannette Eppink, we think, is established beyond question, and was so found by the trial court. It is a tax upon one's credulity to believe that Mrs. Eppink did not know at the time she conveyed away this property that the trial court had made a finding against her in the sum already stated. She had been a party and witness in what appeared to have been a contested suit. She had been represented by at least two counsel upon that hearing. That every member of the family, including Mrs. Taylor, who had recently visited her mother, knew the result of that suit, is, in our opinion, beyond question.

The only question remaining upon the merits is: Did the daughter, Mrs. Taylor, know of this condition, and did she, in the receiving of this conveyance, know the purpose which the mother had in deeding the property away? There are many earmarks about the testimony in the case that lead an unbiased mind to believe that the whole transaction was a scheme to place this property in the hands of the daughter, and away from this complainant's execution. The facts

that the deed was made in the absence of Mrs. Taylor; that no money was paid until, as found by the circuit judge, on the 19th of June following, when $500 was paid; that the final payment of $1,500, if ever actually made, was made 60 days and upwards after the notice of the levy of execution had been duly filed-are all very significant. The fact that no satisfactory explanation is made as to what was done by Mrs. Eppink with the money leads one to criticise very closely this "family affair," and the testimony of these defendants.

There is no claim that Mrs. Taylor was a creditor, or that her mother was in any way indebted to her. The rule of law has been repeatedly stated by this court to be as follows:

"Such a knowledge of facts as will put an ordinarily prudent man on inquiry will affect the good faith of one who takes a transfer of property from an embarrassed owner. Actual participation in the fraudulent intent of the latter is not necessary to defeat the transfer." Hough v. Dickinson, 58 Mich. 89 (24 N. W. 809).

In Bedford v. Penny, 58 Mich. 424-428 (25 N. W. 381), this court held that actual participation by a purchaser in the fraudulent intent with which one makes a sale to defraud his creditors is not a necessary condition to its avoidance; if the purchaser is not a creditor, it is enough that he knows what would put a prudent man upon inquiry as to the motive of the sale. See, also, Jordan v. White, 38 Mich. 253; Allen v. Stingel, 95 Mich. 195 (54 N. W. 880); Gumberg v. Treusch, 110 Mich. 451 (68 N. W. 236).

In Gordon v. Alexander, 122 Mich. 107 (80 N. W. 978), this court said the following request to charge should have been given:

"The plaintiff was not a creditor of McDonald, but a purchaser; and, if he had knowledge of facts sufficient to put an ordinarily prudent man on inquiry,

such knowledge on the part of Gordon would be sufficient to avoid the sale, without any active participation in the fraud by him."

See, also, Lyon v. Clark, 129 Mich. 381 (88 N. W. 1046).

We have examined with care the decisions of this court under the section above quoted (section 10203, 3 Comp. Laws, section 12864, 5 How. Stat. [2d Ed.]).

That the burden is cast upon the defendant to show the bona fides of the transaction in all respects has been repeatedly held by this court since the adoption of the foregoing statute. Smead v. Rogers, 120 Mich. 441 (79 N. W. 638); Preston National Bank v. Leonard, 122 Mich. 381 (81 N. W. 264; Thomas, 126 Mich. 61 (85 N. W. 245); Gruner v. Brooks, 126 Mich. 465 (85 N. W. 1085); Wilcox v. Hammond, 128 Mich. 516 (87 N. W. 636); Crane v. Waldron, 133 Mich. 73 (94 N. W. 593); Shepard v. Schrutt, 163 Mich. 485 (128 N. W. 772).

Ullman v.

We have frequently said that in cases of this nature family transactions should be carefully scrutinized. In our opinion, the defendants have not sustained the burden of proof cast upon them by the statute. They have failed to show that the transaction was in all respects bona fide.

The trial court reached a different conclusion, but, this being a chancery case, it becomes our duty to examine the whole evidence. It does appear by the findings of the court below, and in that respect we agree with the court, that the $170.84 indorsed on the execution was intended to apply on said judgment against John Eppink; that said amount was for certain potatoes, in the warehouse, which had been disposed of by that defendant in execution. The trial court dismissed the bill of complaint, and the complainant has appealed.

The trial court criticised the testimony of the wit

ness Shreve as "too pat to be credible." The same may be said of the testimony of Sena Taylor as to the transactions between her and her mother. The fact that she carefully took receipts from her mother for the two payments is, to say the least, unusual. The consideration was mentioned in the deed, and the acknowledgment therein of the receipt thereof was certainly a sufficient receipt for the payment. With the merits of the case in this condition, it is necessary for us to speak of the failure to indorse the levy upon the execution, and the sufficiency of the filing of the notice of levy. We need only refer in this connection to Vroman v. Thompson, 51 Mich. 452-456 (16 N. W. 808), and Shepard v. Schrutt, supra.

In view of the admission made by defendants' counsel in open court (to say nothing about the application to set aside the return of the officer upon the execution), we think it should be held that that irregularity was waived in open court by counsel in the presence of the defendants, and that they are estopped thereby. We are also of the opinion that the irregularity in not filing the printer's affidavit when the order pro confesso was entered was not fatal to the proceeding. The affidavit of the solicitor for complainant was, at least, some evidence of the publication. The affidavit of the printer does not exclude other proof, such as the affidavit of some other person who knows the fact. Matthews v. Supervisors, 48 Mich. 587 (12 N. W. 863).

We have examined with much care the sections of the statute to which our attention is called by defendants' counsel in their brief, to wit, sections 9533 and 9537, 3 Comp. Laws (sections 11417, 11421, 4 How. Stat. [2d Ed.]), as well as the authorities cited by counsel.

The evidence in the case is such that we cannot hold that Mrs. Taylor was a bona fide purchaser. At