Learing; and the court is strongly inclined to hold that, under all the circumstances, it was not admissible for the object contemplated. If, however, it is received, it was not sufficient to establish the falsity of the statements of both of the respondents as to the ownership of the bankrupt in this vessel. Mrs. Jarvis, in her answer, states that he was the owner of three-fourths, and her husband, in his deposition taken August 16, 1880, also swears that in April, 1871, he owned that interest in her. His attention was not called to this enrollment; no explanation was demanded of him in relation to it; but his testimony upon this point was left as originally given by him, without intimation of what was disclosed by the custom-house records.

This enrollment was made December 1, 1869; the deed was given in April, 1871,--more than a year after, and if the fact was conceded that in 1869 he owned but one-sixteenth, it would not be very cogent testimony to discredit two witnesses who testify that in April, 1871, he was then the owner of three-fourths, as property of this nature is constantly changing ownership. It is also a matter of some importance that there is not produced, from the custom-house, copies of any conveyances of this vessel, or of her register, obtained subsequent to this enrollment, as she was, when lost, sailing on a foreign voyage under a register, or any evidence that the records and files of the custom-house do not disclose that such instruments never existed. In the opinion of the court the evidence does not disprove the ownership of the bankrupt in three-fourths of the Mountain Eagle in the month of April, 1871.

The answer of Mrs. Jarvis and the deposition of her husband assert his ownership, at that time, of one-fourth of the brig Isabella Beauman. This statement the complainant would disprove by a copy, duly attested, from the custom-house, of a bill of sale of the onefourth of said brig from the bankrupt to Andrew Jackson Jarvis, dated March 8, 1867, and recorded March 19 of the same year. This copy is also objected to. Would the record itself of this deed be admissible as evidence of ownership without any proof whatever of the execution of the original instrument?

Copies of deeds are generally inadmissible to prove their contents. In this state, "office copies of deeds of real estate are admissible in actions touching the realty, but in all other actions the general principle of the law of evidence prevails, that a party offering to prove a fact by deed must produce it and prove its contents." Per Shepley, C. J., Hutchinson v. Chadbourne, 35 Me. 192; Kent v. Weld, 2 Fairf. 459.

This copy, therefore, was inadmissible, but if admitted would have been wholly insufficient, executed in 1867, to establish that in 1871 the bankrupt was not then owner of one-fourth, when he and his wife had both sworn that at that date he did actually hold that interest in this brig. That he subsequently invested in the brick-yard $2,250, which was apparently a valuable and safe investment, is not questioned. His other property was in bonds,-$4,000 or $5,000,-which in his deposition he says he then held, but which were subsequently, in 1873, converted into Connecticut Western Railroad bonds, costing him 90 per cent., but from which he eventually realized only about 20 per cent. The testimony of John H. Jarvis was "that about a year after the deed was made he sold some government bonds belonging to the bankrupt, and with the proceeds purchased $6,000 of Connecticut Railroad bonds;" thus corroborating the statement of the bankrupt and his wife, and fully satisfying the mind of the court that he was the owner of $4,000 or $5,000 of government bonds, probably the larger sum, as with the proceeds he acquired $6,000 of the railroad bonds at 90 per cent. That there was no actual fraud intended by this deed, is demonstrated by the undisputed fact that a number of years after its date he offered to pay both of the creditors who have proved their claims the full amount he was then indebted to them, which they declined to receive, preferring to retain without any security his notes, and collect their interest from him. There can be but little question that these creditors, one of whom, if not both, was a resident in Castine, in the same town with the bankrupt, must have been aware of this conveyance, and their actions are strongly corroborative of the testimony that the bankrupt was then a man in good credit, of ample means to discharge all his liabilities. To one of these creditors the bankrupt says "he offered a government bond in payment at the then premium." This was the equivalent of cash, as the party could have disposed of it at any moment, and establishes that he was then the owner of such securities, and is in confirmation of the other testimony in the cause.

Upon all the evidence the court is well satisfied that the bankrupt, at the time of this conveyance, acted in perfect fairness towards all his creditors, without any purpose or intent to hinder, delay, or defraud them in any respect; that he was owing but $3,000, and he retained of personal property more than fourfold that amount; that by most extraordinary misfortunes he finally lost nearly this entire sum, without fault on his part; that for at least four years the creditors could have received their full pay at any moment, the

bankrupt having offered to pay them and they having refused it. Under these circumstances, while the result has proved unfortunate to these creditors, they have no good cause of complaint against the bankrupt and should not be allowed to attack this deed to his wife, which was only a reasonable and proper provision for her and her family as then situated.

The complainant invokes the provisions of chapter 61, § 1, Rev. St., which declares "that when property is conveyed by the husband to his wife without a valuable consideration made therefor it may be taken as the property of the husband, to pay his debts contracted before such purchase." This provision was before the supreme court of this state for consideration in Winslow v. Galbraith, 50 Me. 91, and it was held "that it must not only appear that the property came to the wife from the husband, but that it was fraudulent as to creditors." The case of French v. Holmes, before cited, is of similar effect.

The result, therefore, is that the complainant fails to sustain his case, and the bill must be dismissed; but as the assignee is without any funds belonging to the estate costs are not awarded against him.

PLATT, Assignee, etc., v. MEAD and others.

(District Court, S. D. New York. July 18, 1881.)

1. BANKRUPTCY-FRAUDULENT CONVEYANCES-EXISTING AND SUBSEQUENT CREDITORS-PLEADING-PRIMA FACIE CASE.

ness;

An assignee in bankruptcy makes out a prima facie case for resorting to real estate, with the improvements that have been made thereon since its acquisition, to subject it to the payment of debts contracted subsequently to the time of its acquisition as well as before, by alleging the existence of the indebtedthat the property was purchased by the bankrupt, and the consideration therefor was paid by him, but that the title was taken in the name of the wife; that a judgment had been recovered by the prior creditor, and an execution thereon had been returned unsatisfied; and that the bankrupt had conveyed the property with intent to defraud both prior and subsequent creditors, without consideration, to a grantee with knowledge acting in collusion with him. 2. PLEADING-INTENT TO DEFRAUD.

An averment of an intent to defraud is one of fact, not one of a conclusion of law.

In Bankruptcy. Demurrer to amended bill of complaint for want of equity.

Nelson Smith, for complainant.

P. W. Ostrander and Wm. W. Ladd, Jr., for defendants.

BROWN, D. J. The plaintiff is assignee in bankruptcy of Abraham Mead, who was adjudicated a bankrupt, on petition of his creditors, on June 29, 1878. The assignee was chosen and the statutory assignment of the bankrupt's effects executed to him on September 6, 1878. On the twenty-fourth of August, 1880, this suit was brought for the purpose of reaching certain real estate, in this city, purchased by the bankrupt in 1867, with his own means, the title to which was taken in the name of his wife, the defendant Sarah J. Mead, together with the improvements afterwards made thereon by the bankrupt, and to subject the property to the payment of his debts then existing and subsequent.

The amended bill alleges that the bankrupt, in the early part of 1867, being a plumber and builder, contracted for the purchase, in his own name, of four lots of land on the north-east corner of Sixth avenue and Fifty-fifth street; that he paid $30,000 therefor, and caused the conveyance to be made from the seller to his wife, Sarah J. Mead, by deed dated and recorded May 22, 1867; that he was then "largely indebted and in embarrassed circumstances;" that one Littlefield then held a judgment against him recovered by default in the New York court of common pleas, and docketed June 18, 1866, for $3,183; that in August, 1866, on Mead's application, the default was opened, and he was allowed to come in and defend, the judgment meantime to stand as security for whatever might be recovered thereon; that final judgment was recovered in that action on April 29, 1875, for $5,118.28; that upon execution issued to the sheriff of the county the sum of $953.09 was made, and as to the balance the execution was returned unsatisfied on February 24, 1876, and that the residue of the judgment still remains unpaid; that the bankrupt purchased said lots for the purpose of erecting buildings thereon; that he shortly after entered into possession of them, and prior to September 1, 1873, and mainly in 1869, 1870, 1871, and 1872, erected five brown stone-front dwelling-houses thereon, in which he expended and invested upwards of $125,000; that he procured the title to be so conveyed to his wife, and paid the purchase price therefor, with intent to prevent the property from being subject to the lien of Littlefield's existing judgment, with intent to contract future debts and to defraud future creditors, and made the subsequent improvements. and expenditures upon the property with the same intent; that while erecting the buildings, and after completing them, he gave out and caused it to be understood and believed generally that he was the owner thereof, and on completion he occupied a part of the premises,

and let and rented the rest, and collected the rents in his own name and appropriated the moneys to his own use; that he thereby acquired credit and standing in the community as a person entitled to credit, and upon such credit contracted divers large amounts of debts with intent to hinder, delay, and defraud his creditors, to-wit, some 10 persons especially named holding claims to upwards of $40,000 still unpaid, besides others not named; that his wife was privy to the designs alleged, and aided therein, and held the title in secret trust for her husband; that by deed dated June 22, 1875, and recorded June 24, 1875, said Abraham Mead and wife conveyed said premises to a relative, the defendant James C. Mead, a baker, of little or no property, carrying on a small business at Sing Sing, for the nominal consideration of $300,000, the estimated value of the property, subject to mortgages for $172,150 and taxes of 1874; that James C. Mead paid no consideration for such conveyance, and took the title in aid and furtherance of the fraudulent scheme of said Abraham Mead and Sarah Mead to hinder, delay, and defraud creditors, to cover the premises from them, and to complicate and embarrass them in obtaining payment of their debts out of the said premises; that said James never took actual possession, but that Abraham is still in possession, claiming that he collects the rents as agent of James.

The original bill did not state any facts in regard to Littlefield's existing debt, except the original judgment of 1866, nor specify any subsequent creditors or their claims. The demurrer to the original complaint was, therefore, sustained on the ground that the complaint did not disclose, as to Littlefield, any existing equity which the assignee could enforce, and as to subsequent creditors none were shown to have been defrauded where claims are still unpaid. These objections do not apply to the amended bill, which shows numerous subsequent creditors, alleged to have been thus defrauded, holding claims to upwards of $40,000 still unpaid, and that final judgment was not recovered in Littlefield's favor until April, 1875. From the opening of the default in August, 1866, until final judgment in 1875, Littlefield could neither issue execution nor file any bill in equity based on his first judgment by default. His equitable cause of action did not accrue until after the final judgment in 1875, and execution returned unsatisfied. He had six years from that date, but for proceedings in bankruptcy, in which to proceed against any equitable assets of his judgment debtor. N. Y. Code, §§ 382, 1871; Eyre v. Beebe, 28 How. (N. Y.) 333.