Opinion of the Court.

The Circuit Court also reviewed the evidence as to Foster's condition on February 6, 1884, and found that he had lost largely by reason of a decline in flour during the winter, and was short about 20,000 bushels of wheat, "for which he had given receipts, on any one of which he was liable at any moment to a criminal prosecution;" that there was no room to doubt that John A. Crawford was then liable as surety on Foster's paper for $15,900; "that he afterwards paid the same as part of the consideration of the transfer to him;" that Crawford paid out from $10,000 to $15,000, say $12,500, in settling with farmers and others holding Foster's wheat receipts for 19,541 bushels, that the latter had used; and that in addition Crawford, as part of the consideration for the purchase, applied an open account of $5803 due from Foster to him; and so that Crawford unquestionably paid a consideration of $34,113 for the property, which was "more than it would have probably sold for at sheriff's sale, and more than three-fourths of the value that the master places upon it, which in my judgment is its full market value."

But the master included in the total paid certain notes of Foster held by Crawford, amounting to $16,930, with interest, and while the Circuit Judge held that the evidence, in respect of these notes and their being cancelled as part payment for the property was conflicting, he nevertheless thought that the weight of the evidence sustained the result arrived at by the master. The contention of complainant was that while the notes were paid at some time, this was before the transfer of the property, when they were fraudulently revived for the purpose of being made a part of the consideration thereof; but upon the whole, the judgment of the court was that the "Foster notes in question were existing obligations between the parties at the date of the transfer, and that, whether this be so or not, the purchase was made in good faith and for a valuable and even adequate consideration." We concur that the consideration was not in any view so inadequate as to raise an inference of bad faith, and that it probably exceeded the value of the property conveyed.

Some stress is laid in argument upon the possession by Fos

Opinion of the Court.

ter, after the transfer, of the mill and his residence. It is not contended that such possession of realty rendered the transaction fraudulent per se, (Phettiplace v. Sayles, 4 Mason, 312, 321,) but that it afforded persuasive evidence of fraud in fact.

But, as the court remarks, the surrounding circumstances must be taken into account. The two men were friends of many years standing. They had grown old together, and when Foster failed, and transferred a large part of his property to Crawford, his principal creditor, there was nothing unreasonable in the employment of the former by the latter to run the mill at seventy-five dollars a month and the use of the dwelling. This is what was done according to the testimony, and the explanation was properly held to be satisfactory.

And so as to Foster's declarations. Expressions of hope of recovery indulged in by a person reduced to poverty by large losses must be taken with many grains of allowance, and those testified to here as indicative of the retention of an actual interest in the property fall short of overcoming the explicit evidence to the contrary.

The case as to William Crawford is of much more difficulty.

We cannot accept the view of complainant's counsel that it is impossible to hold the conveyance to William Crawford invalid without also setting aside that to John A. Undoubtedly the rule is that a transaction void in part for fraud in fact is entirely void, but here the transactions were so distinct that while the circumstances surrounding the one should be given due weight so far as they may bear upon the other, a result adverse to the validity of the one does not necessarily compel a like result as to the other. The instruments were several; the grantees, the property conveyed, the alleged consideration, were all different and disconnected; and although John A. acted for his brother in obtaining the deed, yet we are not prepared to hold that error was committed in declining to treat the conveyances as constituting parts of a single transaction and rendering John A. a cograntee with William. The case as to William turned upon the existence, unpaid,

Opinion of the Court.

of certain notes against Foster, which he claimed were outstanding on the 6th of February, 1884, and surrendered as the consideration for the conveyance of the "brick store property."

The master found that in 1867 William Crawford sold the Magnolia mill property to J. H. and John Foster for $16,000, receiving $6000 in cash and taking five promissory notes of the Fosters for $2000 each, bearing date July 20, 1867, maturing in one, two, three, four and five years after date, respectively, and secured by a mortgage on the mill and other property duly executed and recorded; that it was contended on behalf of William Crawford that these notes were taken up by J. H. Foster's notes, six in number, for $16,000, bearing date July 20, 1883, five of them for $2000 each, payable in one, two, three, four and five years after date, and one for $6000 payable in one year after date, which notes were produced and put in evidence. That the mortgage was cancelled of record by Crawford on July 31, 1883. That in 1876, J. H. Foster bought the interest of his brother John in the business and property of J. H. Foster & Co., and assumed all the lia-. bilities of the late firm, this being four years after the maturity of the last of the five notes given for the mill by the two Fosters. That during all these years Foster was doing a lucrative business and was expending considerable sums in the improvement and development of his mill property, and in embarking in new ventures. That in 1876 Foster paid large sums to John A. Crawford in money and by transfer of notes of other people. And the master concluded that the probabilities were strong that John Foster would have insisted upon the taking up of the notes either by payment or the substitution of new notes in 1876 when J. H. Foster bought him out; and that William Crawford would not, while J. H. Foster was doing so large a business and paying over so much money, allow these original notes to run until the interest amounted to three-fifths of the principal. But aside from the probability that these notes were paid long before the satisfaction of the mortgage, the master referred to the positive testimony that upon the passage of the law known as the mortgage tax

Opinion of the Court.

law, which went into operation in 1883, the then county clerk of Linn County called the attention of William Crawford to the fact that the records disclosed an unsatisfied mortgage in his favor against Foster, and asked him to call and see about it, which Crawford did, and, expressing surprise that the mortgage was still on the record and remarking that it had been paid off several years before, cancelled it; also to the evidence of a banker in Albany that in 1878 or 1879 his attention was called to the fact that this mortgage was unsatisfied of record, and he asked Foster in relation to it, and was told by him that the mortgage was paid; also to the sworn return to the assessor of taxes made by William Crawford in 1881, giving his notes as aggregating $5000. The master also commented on the unreasonable character of the inference that Crawford would cancel a valid mortgage on good property by taking unsecured notes therefor, especially in view of the fact that his debtor would not pay his interest, and in view of the further fact that Foster already owed John A. Crawford an amount which, with William's claim, approximated the value of Foster's entire estate.

The master further found that the attempt to explain away the testimony and circumstances to which he had referred, on the theory that Crawford was seeking to avoid taxation, and had made an agreement with Foster that he would pay the taxes on the unsecured notes if Crawford would satisfy the mortgage by taking them, was without weight, for it was just as easy for Foster to pay the taxes on the mortgage as upon the notes.

The Circuit Court discussed the evidence at length, and considered the testimony of William Crawford that the first series of notes were exchanged for the second series, and that the latter were unpaid, when, at his brother's suggestion, William gave them to him for the purpose of purchasing the property then conveyed to William by Foster, as improbable in all its essential features. Judge Deady rehearsed the testimony of the various witnesses and pointed out that it overcame that of William, and John A., and Foster, and dwelt upon the improbability that Foster, who between the giving

Syllabus.

of the original notes in 1867 and the transfer in 1884 had expended $40,000 on the mill property, had built the brick block in question, which cost probably not less than $12,000, his dwelling-house, and his share of the Albany water works, would allow a mortgage to secure a debt of $10,000 to remain on his mill for seventeen years; and that Crawford would permit the unpaid interest on such debt to accumulate to $6000, and then take a note for the amount without interest or security. And he expressed dissatisfaction with the explanation as to the cancellation of the mortgage, that it was done to avoid the operation of the mortgage tax law of 1882; and held that the decided weight of the evidence supported the conclusion that the mill notes were paid before the conveyance to William Crawford was made, and that therefore that conveyance was without consideration and fraudulent against the creditors of Foster.

We have patiently examined the evidence contained in the record, and it is impossible for us to reverse the decree for error or mistake in the conclusions of the master and the court, depending, as they do, upon the weighing of conflicting testimony, and entitled, as they are, to every reasonable presumption in their favor.

The decree must be

Affirmed.

MEYERHEIM v. ROBERTSON.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 279. Argued April 5, 6, 1892.- Decided April 18, 1892.

Laces made by machinery out of linen thread were imported in 1881 and 1882, and charged with duty at 40 per cent ad valorem, as "manufactures of flax, or of which flax shall be the component material of chief value, not otherwise provided for," under Schedule C of § 2504 of the Revised Statutes (p. 462). The importers claimed that they were chargeable with a duty of only 30 per cent ad valorem, as “ thread lace," under the same schedule (p. 463). Held, that, as the evidence clearly showed that