307

EPITOME OF CASES.

§ 347-349 that the property, if discovered, is subject to levy and sale. But it means that he must retain property of which he has the open and visible ownership of such value that when subjected to forced sale it will yield a sufficient sum to pay all the existing debts as well as the taxable costs of their collection."

Sec. 348. Trust deeds. A trust deed executed by an insolvent corporation to secure an issue of its bonds by the terms of which it conveys title to its property to another but retains the right to use and possession thereof may be set aside as a fraudulent conveyance. Coal City Coal & Coke Co. v. Hazard Powder Co., 108 Ala. 218 (19 So. Rep. 392). A trust deed by an insolvent debtor to secure the payment of the debts of another may be set aside by his creditors. Erb v. West, Miss. (19 So. Rep. 829). The conveyance by a debtor of all his real and personal estate to a trustee, to be held in trust, with directions to pay a claim which the trustee himself held against the grantor, and also the claims of certain other creditors, out of the rents and profits and out of the proceeds of the sale thereof by the trustee, but which sale cannot be made without the consent in writing of the grantor, will be set aside as fraudulent at the instance of judgment creditors, who have been provided for in such conveyance, because it hinders and delays them in the collection of thei just demands; but such conveyance will be sustained so far as it provides a security for trust moneys in the hands of the grantor, which may be enforced by cross bill. Richey v. Car. penter, N. J. Eq. (33 Atl. Rep. 472).

Sec. 349. Conveyances between near relatives. A conveyance by one brother to another in consideration of the grantee's paying a portion of the debts of the grantor equa in amount to the value of the real estate, is not rendered fraudulent as against a creditor whose debt is not provided for, by the fact that the grantee accounts to the grantor for a portion of the rents and profits and permits him to occupy the homestead for a time and subsequently conveys it to his wife for a nominal consideration, it appearing from the testimony of the grantee that the conveyance was made in good faith

and that the grantee had paid and discharged the debts provided for therein. Baker v. Harvey, 133 Mo. 653 (34 S. W. Rep. 853). While transactions between father and son are subject to critical scrutiny, yet if the circumstances show them to be fair, open and free from fraudulent intent, the relationship of the parties will not vitiate nor render them void. Douglass v. Douglass, 41 W. Va. 13 (23 S. E. Rep. 671).

Sec. 350. Marriage settlements-Deed of husband to wife. As against existing creditors, a deed executed in consideration of marriage is valid, even though it be not delivered until after the marriage is consummated, the transaction being in good faith on the part of the wife. Wood & Huston Bank v. Read, 131 Mo. 553 (33 S. W. Rep. 176). Although a postnuptial settlement may have been made under such circumstances that it must be pronounced fraudulent and void as to the creditors of the husband, yet, if the wife relinquishes her interest in the property, or assumed the payment of debts due from her husband, so as to make them charges upon her separate estate, upon the faith of such settlement, it will be held good to the extent of a just compensation for the interest which she may have parted with, or of the debts which she has assumed to pay. Flynn v. Jackson, 93 Va. 341 (25 S. E. Rep. 1). A conveyance of land from husband to wife, directly or indirectly, with fraudulent intent towards either prior or subsequent creditors will be held void as to such creditors. Billingsley v. Clelland, 41 W. Va. 234 (23 S. E. Rep. 812). The sale of a farm by the husband and the purchase of another and the vesting of the title thereto in the wife as against the creditors of the husband is void, unless at the time of the vesting of the title in the wife, the husband was solvent and his creditors were not affected thereby to their prejudice. The vesting of the title in the wife will date. from the delivery of the conveyance and not from the date of the contracts entered into by the parties. Baxter v. Hecht, 98 Ia. 531 (67 N. W. Rep. 407). Marriage is a sufficient consideration to support a deed. State ex rel. Harrison v. Osborne, 143 Ind. 671 (42 N. E. Rep. 921).

Sec. 351. Deed of husband to wife-Burden of proof. Where a conveyance is made from husband to wife, and it is attacked by his creditors as fraudulent, the burden is on her to show that she paid a fair consideration out of her separate estate; and, having shown this, the burden then rests on the creditor to show fraud, but it requires less evidence to show it than if the transaction were between strangers. If the wife owns a separate estate, and the husband transfers to her real estate charged with liens, in consideration that she pay the liens, and she acts in entirely good faith and free from fraudulent design as to the creditors, without notice of fraudulent intent on his part, she is a purchaser for a valuable consideration and will be protected as such, and on account of the relation of the parties such a transaction must be scanned closely, and it must appear clearly that she is free from fraud, and that any payments made under the transfer on liens were not from the estate of the husband. Wood v. Harmison, 41 W. Va. 376 (23 S. E. Rep. 560). Where a wife permits the title to her land to remain in her husband knowing that he is contracting liabilities and so far as the creditors of the husband are concerned she makes no claim to the property, in a suit by the creditors to subject the land to the payment of their debts after it has been conveyed to her, the burden is upon the wife to establish her equitable title to the land by clear and satisfactory evidence. Where her silence has been such as to induce the creditors of the husband to rely upon his ownership of the land, she will be estopped from asserting secret equities. Iseminger v. Criswell, 98 Ia. 382 (67 N. W. Rep. 289).

Sec. 352. Conveyance of land bought with wife's money. Where a husband has received the wife's money and used it with her knowledge and consent and without any promise for its payment, the law does not imply a promise of repayment as would be the case if they were strangers, but presumes that the receipt and use of her money or property or its proceeds was a gift by the wife to the husband and not a loan. A subsequent conveyance of land by the husband to the wife in consideration of his having so used her money will be treated as voluntary and void as against existing creditors. Flynn v. Jackson, 93 Va. 341 (25 S. E. Rep. 1). Citing,

Beecher v. Wilson, 84 Va. 813 (6 S. E. Rep. 209; 10 Am. St. Rep. 883); Humes v. Scruggs, 94 U. S. 22; Bennett v. Bennett, 37 W. Va. 396 (16 S. E. Rep. 638). Where the husband has promised to repay the wife for property which he has received from her the rule is different and a conveyance to her in consideration of such obligation will be upheld as against creditors. Columbia Sav. Bank v. Winn, 132 Mo. 80 (33 S. W. Rep. 457). Mere inadequacy of consideration in a deed from a husband to his wife, even if he were insolvent at the time of its execution, will not of itself alone avoid the deed at the instance of creditors, if there was no intention to hinder, delay, or defraud them. The inadequacy of consideration, if gross, would be a badge of fraud, and might be so gross, when combined with other circumstances, as to amount to proof of actual fraud. Although the consideration expressed in a deed to realty from a husband to his wife may be so grossly inadequate as to suggest fraud, yet, if it appears that the property, when originally purchased by and conveyed to the husband, was paid for with the wife's money, the deed from him to her may be upheld as bona fide. Hawkinsville Bank & Trust Co. v. Walker, 99 Ga. 242 (25 S. E. Rep. 205). When the husband purchases land with the separate money of his wife and takes the legal title in his own name, for convenience in transferring the same, and the husband at no time represents himself as the owner, and his creditors in extending credit did not rely on his ownership, the wife is entitled to hold the property as her separate property against the judgment creditors of her husband. Kemp v. Folsom, 14 Wash. St. 16 (43 Pac. Rep. 1100), distinguishing Frederick v. Shorey, 4 Wash. St. 75 (29 Pac. Rep. 766).

In Alabama a

Sec. 353. Voluntary conveyances. voluntary conveyance is void as to existing creditors, under all circumstances. Wooten v. Steele, 109 Ala. 563 (19 So. Rep. 972; 55 Am. St. Rep. 947); McLaren v. Anderson, 109 Ala. 571 (19 So. Rep. 982). In a recent case the supreme court of Alabama say: "A voluntary conveyance by one who is indebted is presumptively fraudulent, when attacked by a judgment creditor upon a debt existing at the time of its execution. In such cases it is not necessary to

show that the debtor was actually insolvent at the time he executed the conveyance." McKeown v. Allen, 37 Fla. 490 (20 So. Rep. 556). Citing, Bump, Fraud. Conv., p. 278; Pratt v. Curtis, 2 Low. 87 (Fed. Cas. No. 11,375); Ellinger v. Crowl, 17 Md. 361; Martin v. Evans, 2 Rich. Eq. 368; Cook v. Johnson, 12 N. J. Eq. 51; Williams v. Banks, 11 Md. 198; Young v. White, 25 Miss. 146; Worthington v. Bluitt, 6 Md. 172 (text, 198, 199). A voluntary conveyance is valid as against subsequent creditors. The insolvency of the grantor at the time of the conveyance will not of itself raise a presumption of fraud. Elyton Land Co. v. Iron City S. B. Works, 109 Ala. 602 (20 So. Rep. 51). Voluntary conveyance of property not exempt made by a husband to his wife, when in failing circumstances, is void as to his creditors whose claims existed at the date of such conveyance. Claflin v. Ambrose, 37 Fla. 78 (19 So. Rep. 628). A voluntary conveyance made to hinder and delay creditors only, is not void as to subsequent purchasers who take title with notice. Harton v. Lyons, 97 Tenn. 180 (36 S. W. Rep. 851). A voluntary conveyance by a married woman of her separate estate which could be subjected to the claims of creditors may be set aside as a fraud upon their rights. Wich v. Dawson, 42 W. Va. 43 (24 S. E. Rep. 587). A voluntary conveyance, made with an intent on the part of the grantor to defraud subsequent creditors, is void as to such creditors, without proof of fraud on the part of the grantee. Wilson v. Spear, 68 Vt. 145 (34 Atl. Rep. 429). When the conveyance is without valuable consideration, the creditor may avoid it for the fraud of the grantor alone. Wilson v. Spear, 68 Vt. 145 (34 Atl. Rep. 429). Where a conveyance is partly voluntary, courts will, in favor of creditors, often set it aside, so far as it is without consideration, but let it stand as security for the consideration actually paid. Leqve v. Stoppel, 64 Minn. 74 (66 N. W. Rep. 208).

Sec. 354. Gift by insolvent debtor-Subsequent creditors. The Georgia Code, § 1952, provides that "every voluntary deed or conveyance not for a valuable consideration, made by a debtor insolvent at the time of such conveyance, shall be fraudulent in law as against creditors and as to