fraud. The presumption is always in favor of innocence, and not of guilt. In no doubtful matter does the court lean to the conclusion of fraud. *** The facts constituting the fraud must be clearly and conclusively established. Circumstances of mere suspicion will not warrant the conclusion of fraud. If the case made out is consistent with fair dealing and honesty, a charge of fraud fails." Darling v. Ricker, 68 Vt. 471 (35 Atl. Rep. 376). In a suit to set aside a conveyance made by a husband to his wife, as fraudulent, brought by his creditors, whose claims existed at the date of such conveyance, the burden of proving a consideration proportionate to the value of the land conveyed is upon the wife, and clearer and fuller proof is required than if the transaction had been between strangers. Claflin v. Ambrose, 37 Fla. 78 (19 So. Rep. 628). Citing, Post v. Stiger, 29 N. J. Eq. 554; Medsker v. Bonebrake, 108 U. S. 66 (2 Sup. Ct. Rep. 351); Horton v. Dewey, 53 Wis. 410 (10 N. W. Rep. 599); Fisher v. Shelver, 53 Wis. 498 (10 N. W. Rep. 681); Wedgeworth v. Wedgeworth, 84 Ala. 274 (4 So. Rep. 149). The fact that an insolvent corporation mortgages all its property to its president is not such conclusive evidence of fraud as will warrant an attachment. Trebilcock v. Big Mo. Min. Co., 9 S. Dak. 206 (68 N. W. Rep. 330). The attempt to defraud must exist as a fact and will not be sustained by the evidence of a constructive fraud or fraud in law. Trebilcock v. Big Mo. Min. Co., 9 So. Dak. 206 (68 N. W. Rep. 330). It is held that where the effect of the conveyance is to hinder and delay in the collection of the creditor's claim, the real motive of the parties to the deed becomes immaterial. McKeown v. Allen, 37 Fla. 490 (20 So. Rep. 556). Where fraudulent intent against creditors is sought to be made out against a transfer of his property by a debtor on the sole ground of inadequacy of consideration, without any other element tending to show fraud, the inadequacy must be so great as fairly to induce the belief of fraudulent intent. Wood v. Harmison, 41 W. Va. 376 (23 S. E. Rep. 560). In order to set aside a voluntary conveyance as fraudulent, it is not necessary to prove the grantee's knowledge of or participation in the fraud. Gilleland v. Jones, 144 Ind. 662 (43 N. E. Rep. 939; 55 Am. St. Rep. 210). For cases depending upon particular facts, illus

trating what is sufficient proof to set aside a fraudulent conveyance, see Miller v. Hilton, 88 Me. 429 (34 Atl. Rep. 266); Rankin v. Gardner, N. J. Eq. (34 Atl. Rep. 935); Hoffman v. Ilenderson, 145 Ind. 613 (44 N. E. Rep. 629); Schumacher v. Bell, 164 Ill. 181 (45 N. E. Rep. 428); Leqve v. Stoppel, 64 Minn. 152 (C6 N. W. Rep. 124); Carbiener v. Montgomery, 97 Ia. 659 (66 N. W. Rep. 900); Harvey v. Anderson, Va. (24 S. E. Rep. 914); Ettlinger v. Kahn, 134 Mo. 492 (36 S. W. Rep. 37); Miller v. Rowan 108 Ala. 98 (19 So. Rep. 9).

Sec. 367. Badges of fraud. It is held that the fact that a mortgage is executed for a much larger sum than the indebtedness to be secured is a badge of fraud but does not render the instrument void, per se. Adams v. Laugel, 144 Ind. 608 (42 N. E. Rep. 1017). The court say: "While it is unquestionably a badge of fraud to execute or to receive a mortgage for a considerable sum in excess of the actual indebtedness, it should not render the mortgage void, per se, since there may be numerous valid excuses for the overstatement, such as an intention to cover future advances, ignorance of the mortgagee that the mortgage includes too large a sum, mistake in calculations, and the like. The observations make it perfectly clear, we think, that the existence of a fraudulent intent is always necessary; that the existence of that intent is a question of fact; that the burden of such issue is upon the attacking party; that honest intentions and fair dealing must, in the first instance, be presumed; and that the trial court must determine the question upon the weight of the evidence." Withholding a deed from record through mere inadvertence is not necessarily a badge of fraud. Michigan Trust Co. v. Adams, 109 Mich. 181 (66 N. W. Rep. 1094).

Sec. 368. Setting aside-Burden of proof. The burden of proving a valuable consideration rests on the grantee. Miller v. Rowan, 108 Ala. 98 (19 So. Rep. 9). In North Carolina it is held that where a creditor attacks a voluntary conveyance of his debtor as fraudulent the burden of the proof is upon the latter to show that he retained property sufficient and available to pay his existing debts. State ex rel Ricks v.

Stancill, 119 N. C. 99 (25 S. E. Rep. 721). In an action against the holder of a note and mortgage given in fraud of creditors, to set aside the conveyance, the fraudulent character of the original transaction being shown, the burden of proof upon the holder to show that he was a bona fide purchaser for value before maturity. Harrington v. Johnson, App.

is

(44 Pac. Rep. 368).

Colo.

Sec. 369. Fraudulent conveyances binding on the parties. Fraudulent conveyances are binding upon the parties thereto and their privies. Gross v. Gross, 94 Wis. 14 (68 N. W. Rep. 469); Sawtelle v. Weymouth, 14 Wash. St. 21 (43 Pac. Rep. 1101). One cannot invoke a court of equity to enforce a trust which he created in order to defraud his children out of the property affected by it. Brown v. Brown, 66 Conn. 493 (34 Atl. Rep. 490). Where one who has taken a deed from another in fraud of his creditors reconveys to such original grantor and he afterwards seeks to enforce some liability against such original grantee upon the theory that the transaction was based upon a valuable consideration, such grantee may defend by showing all the facts pertaining to the original transaction. Cartledge v. Mc Coy, 98 Ga. 560 (25 S. 1. Rep. 588). Where the purchaser of a tract of land who is in debt has the grantor, when paid the consideration, execute a deed of general warranty to a third person, and the purchaser has the deed so made to hinder and delay his creditors, the deed is binding between the parties, and said real estate is subject to the lien of a judgment rendered prior to the execution of such a conveyance against the person to whom such conveyance is made; and such lien is superior to that of a mortgage executed at the same time as the deed, where the mortgagee had knowledge of the fraudulent purpose of the purchaser in having the land so conveyed. Hawley v. Smeiding, 3 Kan. App. 159 (42 Pac. Rep. 841).

Sec. 370. Equitable relief to the grantee. While the general rule is that, if a transfer is tainted with actual fraud, it will not be allowed to stand for any purpose, either of reimbursement or indemnity, this rule is not inflexible. Courts of equity will look at the facts, giving to each its due

weight, and deal with the transaction before it according to its ideas of right and justice. If it appears that the grantor and grantee have combined to commit a meditated, positive fraud, and the evidence is clear, the court will not allow the conveyance to stand for any purpose of reimbursement or indemnity. But where the circumstances are so suspicious that the court does not feel warranted in allowing the conveyance to stand, but the evidence of fraud is by no means clear and conclusive, they will, under some circumstances, allow the conveyance to stand as security for the reimbursement of the grantee, at least for money expended by him for the benefit of the property, as by paying off incumbrances. A distinction should be made between such a case and one where the money has been paid by the grantee to the fraudulent grantor. Leqve v. Stoppel, 64 Minn. 74 (66 N. W. Rep. 208). In a proceeding to set aside a conveyance as fraudulent, if it be shown that the price obtained was far below the market value of the property, a court may consider the transaction as a mortgage and decree that the complainant may redeem on paying to the transferee the actual sum paid by him with interest; the latter to be charged with the rents and profits and credited with the expense of repairs and taxes. Warner v. Withrow, N. J. Eq. (35 Atl. Rep. 1057). A grantee who participates in the fraud of a debtor grantor will not be remitted even the amount he has paid for the purchase. Bank of Commerce v. Northwestern Nat. Bank, 93 Wis. 241 (67 N. W. Rep. 423). A mortgagee who takes a mortgage for the purpose of defrauding the mortgagor's creditors cannot enforce it, whether executed for a valuable consideration or not. O'Kane v. Terrell, 144 Ind. 599 (43 N. E. Rep. 869).

HOMESTEAD.

EPITOME OF CASES.

A married

Sec. 371. Who may claim a homestead. woman who was not living separate and apart from her husband was not, under Georgia constitution, 1868, Art. 7, § 1,

entitled to have a homestead set apart to herself out of her own property. Williams v. Webb, 99 Ga. 301 (25 S. E. Rep. 654). A husband absent from the state in order to evade a criminal prosecution who intends to return as soon as it is dismissed and whose wife and children remain in the state upon his homeplace, is a "resident" of the state, under N. C. Const., Art. 10, § 1, so as to entitle him to a homestead. Clark J., dissenting. Chitty v. Chitty, 118 N. C. 647 (24 S. E. Rep. 517). Under Tex. Const., Art. 16, § 50, exempting a "homestead of a family" from forced sale, a divorced wife, having no family, who occupies as a home land set apart to her for life by the decree of divorce, out of her husband's homestead, cannot claim an exemption of her interest therein from sale under judgment rendered against her subsequent to the decree of the divorce. Bahn v. Starcke, 89 Tex. 203 (34 S. W. Rep. 103; 59 Am. St. Rep. 40).

Sec. 372. In what lands a homestead may be claimed. A homestead exemption cannot be asserted in lands in which the claimant has not such an interest as would otherwise be subject to sale on execution against him. Roberts v. Trout, 13 Tex. Civ. App. 70 (35 S. W. Rep. 323). Citing, Conklin v. Foster, 57 Ill. 107; Randel v. Elder, 12 Kan. 261; Sears v. Hanks, 14 Ohio St. 301 (84 Am. Dec. 378); Volger v. Montgomery, 54 Mo. 584; Bartholomew v. West, 2 Dill. 293 (Fed. Cas. No. 1,071). A homestead exemption may be claimed in lands purchased by an insolvent debtor with money as to which he has waived his right to claim an exemption, provided the purchase is made before any lien on the money has been acquired by the creditor. Reeves v. Peterman, 109 Ala. 366 (19 So. Rep. 512). See opinion for citation of conflicting authority. A vendee in possession of land purchased may assert a homestead therein although his vendor retains the legal title until the purchase price is fully paid. Lessell v. Goodman, 97 Ia. 681 (66 N. W. Rep. 917; 59 Am. St. Rep. 432).

Sec. 373.

Occupancy and use necessary-Contiguous parcels. In New Hampshire in order for one to be entitled to claim a homestead right in lands it is not necessary