575, 585, and note; Me Elwel vs. Sutton, 2 lb. 128; Seward vs. Jackson, 8 Cowen, 406; 2 Greenleaf's Cruise, Book 4, Ch. 28, sec. 15, and note (1), secs. 17, 18, 19; Dardenne vs. Hardwick, 4 Eng, 482; Dodd vs. McCraw, 3 Eng. 83; Smith vs. Yell, 8 Arks. (3 Eng.) 470; Burkey vs. Self, 4 Sneed, (Tenn.) 121.

If the intention to defraud his creditors is not established by the fact of the deed having been made to his wife, Bender, is not shown to have had any such intention when he procured it to be made to her.

The testimony shows clearly that he has always, up to the present time, been solvent. The fact is not denied in Bertrand's bill, or in any of the pleadings. It is not pretended that the conveyance to Mrs. Bender was actually made to hinder, delay, or defraud his creditors, or that it has had that effect. Bertrand contends that the law presumes such to have been the case. In fact it is not shown that he had any creditors at the date of the deed. This fact it was incumbent on Bertrand to prove, if it existed. See above authorities. As to subsequent debts, their existence can afford no evidence of fraud in the conveyance; and fraud must be proved, the law will not presume it. Dardenne vs. Hardwick, supra; Irons vs. Reyburn, 11 Ark. 378; Hempstead vs. Johnson, 18 Ark. 123. But if a presumption of fraud had arisen it is repelled by the facts disclosed in the case, such, for instance, as Bender's solvency and his payment of his debts. 1 American Leading Cases, p. 56, etc., 1 Robinson's Va. R. 500, 536; 4 McCord, 295; 1 Bailey's Eq. R. 220.

Mr. Justice COMPTON delivered the opinion of the court.

On the 23d of November, 1848, George C. Watkins, who was then the owner of lots 8 and 9 in block 35, of the city of Little Rock, sold them to David Bender for $2500 00, and executed to him a bond for title. The purchase money having been paid, Watkins and wife, by deed dated the 15th of April, 1852, conveyed the lots to Mrs. Charlotte Bender, the wife of David Bender. The deed was thus made at the request of the hus

band, and though it recites the payment of the purchase money as having been made by Mrs. Bender, the testimony abundantly shows that it was in fact paid by the husband, and that the conveyance to the wife was voluntary.

At the time the deed was made, Bender was indebted to St. Johns' College, in the sum of $500 00, by bond dated the 24th of March, 1852, due twelve months after that date, and on which judgment was recovered against him on the 14th of July, 1857, for $659 50, with cost of suit. Under an execution issued on this judgment, the lots were sold by the sheriff at public sale, on the 3d of May, 1858, and Charles P. Bertrand became the purchaser.

Mrs. Bender died on the 30th of November, 1857, without children by Bender, but having Marcus M. Elder, a son and only heir by a former husband, her surviving, who claimed the lots as her sole heir, and who, soon afterward, instituted an action of ejectment for their recovery, and obtained judgment by default.

Bertrand then exhibited the bill in this case to have the title set up by Bender declared invalid, and his own established and quieted; and the question submitted to us, on appeal to this court, is, whether, under the circumstances developed in the record, the voluntary conveyance to the wife can be sustained against Bertrand, he having purchased the premises at execution sale under a judgment against the husband at the suit of an existing creditor.

There is some diversity of judicial opinion touching the rights of creditors, where a voluntary disposition of property has been made by the debtor. The counsel for Bertrand relies on Reade vs. Livingston, 3 Johns. Ch. Rep. 479, which was a voluntary settlement by the husband of property upon the wife, and in which Chancellor Kent held, that the voluntary conveyance of a party indebted at the time of its execution is presumed to be fraudulent with reference to the claim of an existing creditor, and that such presumption is an inference of law, not open to explanation, and which no circumstances will be permitted

to repel. He says: "The conclusion to be drawn from the cases is, that if the party be indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such debts, and no circumstances will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. The presumption of law in this case does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the party. There is no such line of distinction set up or traced in any of the cases. The attempt would be embarassing, if not dangerous to the rights of creditors, and prove an inlet to fraud. The law has, therefore, wisely disabled the debtor from making any voluntary settlement of his estate, to stand in the way of existing debts." Though the decision in this case is not unsupported, the decided preponderance of authority, both in this country, and in England, is against it, and establishes a rule less rigid, and, in our opinion, more consistent with a sound interpretation of the statute of frauds.

In Hinde's Lessee vs. Longworth, 11 Whea. 213, the voluntary conveyance of certain real estate by Thomas Doyle, to his son, was sought to be set aside by persons claiming as judgment creditors upon antecedent debts; and the rule, as now firmly established in the Supreme Court of the United States, was laid down in the following language: "A deed from a parent to a child, for the consideration of love and affection, is not absolutely void as against creditors. It may be so under certain circumstances; but the mere fact of being in debt to a small amount, would not make the deed fraudulent, if it could be shown that the grantor was in prosperous circumstances and unembarrassed, and that the gift to the child was a reasonable provision according to his state and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud, but it is only presumptive, and not conclusive evidence of it, and may be met and rebutted by evidence on the other side.” Chief Justice MARSHALL, in Hopkirk vs. Randolph et al., 2 Brock.

refused to set aside the voluntary conveyance of a father to his daughter, as fraudulent, though the father was indebted at the time of the conveyance, it appearing that his fortune was ample, and the gift to the daughter comparatively trivial. Commenting on the statute against fraudulent conveyances, he said: "But as this intent" (to hinder and delay creditors) "is concealed within the bosom of the actors, it would be the duty of the court to infer it from the character of the transaction and as the equity of the creditors is generally stronger than that of mere volunteers, the court ought to lean to the side of the creditor, and to consider every gift or voluntary conveyance as coming within the statute, the fairness of which was not conclusively proved. Even independent of the statute, gifts or voluntary conveyances, which obviously defeated the claim of a creditor, would be considered as fraudulent, so far as regarded him. The donee, therefore, would always be required to prove the fairness of his title. If he be not a purchaser for a valuable consideration, it would be incumbent on him to show a case, not only without taint, but free from suspicion. If the circumstances of the gift be such that, accord ing to any reasonable probability, it might originate in any impure motive, or might, in fact, prove injurious to creditors, by withdrawing a subject to which they had just pretensions, the fair construction of the act would comprehend it. But a construction which should, under all circumstances, comprehend every gift, merely because it was voluntary, might derange the ordinary course of society, and produce much greater injustice than it would prevent." And in another part of the opinion, referring to Sexton vs. Wheaton, 8 Wheat. 229, a case in which the chief justice himself delivered the opinion of the court, he remarked: "The Supreme Court of the United States has said 'that in construing the statute of the 13th Eliz., courts have con sidered every conveyance, not made on consideration deemed valuable in law, as void against previous creditors.' This is a general proposition concerning the extent of the English decisions, not a decision of the court itself declaring that every gift, however

trivial, is at any distance of time, and under any circumstances to be avoided by a creditor. The general proposition was

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all which could be in the mind of the court, since the case was one of a subsequent purchaser, and did not lead to any minute investigation of the distinctions which might possibly exist in cases of gifts made by persons indebted at the time." But whatever doubt might have been entertained as to the doctrine in that court, growing out of the expression of the chief justice in Sexton vs. Wheaton, none has existed since the subsequent decision in Hinde's Lessee vs. Longworth, from which we have above quoted.

In Salmon vs. Bennett, 1 Con. 525, a conveyance to a child in consideration of natural love and affection, made without fraudulent intent, at a time when the grantor was free from embarrassment, the gift constituting but a small part of his estate, and being a reasonable provision for the child, was held valid against an existing creditor. In this case, it was said by SWIFT, Ch. J.: "Where there is no actual fraudulent intent, and a voluntary conveyance is made to a child in consideration of love and affection, if the grantor is in prosperous circumstances, unencumbered, and not considerably indebted, and the gift is a reasonable provision for the child according to his state and condition in life, comprehending but a small portion of his estate, leaving ample funds unencumbered for the payment of the grantor's debts, then such conveyance will be valid against creditors existing at the time. But though there be no fraudulent intent, yet if the grantor was considerably indebted and embarrassed at the time, and on the eve of bankruptcy; or if the value of the gift be unreasonable, considering the condition in life of the grantor disproportioned to his property, and leaving a scanty provision for the payment of his debts, then such conveyance will be void as to creditors." And per GOULD, J.: "Evidence of indebtedness at the time at least, and, as I conceive, of indebtedness amounting, or approximating to embarrassment, must be shown. For, if any degree of indebtedness, however small, would defeat such conveyance; they would,