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Opinion of the Court.

out opposition. They saw the petition and notice, and must have known that they were strictly in conformity to the statute, and entitled appellant to a change of venue. Hence they have contributed to produce the hardship of which they now complain. Counsel must have known that it was error to refuse the motion, and hence should have yielded to the change of venue, but, failing to do so, he can not urge us to relieve him against the error he has procured in the record. If the statute is harsh, or if it works hardship, the remedy is in the hands of the General Assembly, and not in either of the other departments of the government.

It is urged that the declaration does not aver the value of the property destroyed. It avers that appellees were interested in the property to the value of $5000. This averment is made under a videlicit, and is certainly good on general demurrer, or in arrest of judgment, although it might have been bad on special demurrer. But we presume appellant does not seriously rely on so trifling an objection.

It is urged that the declaration did not aver to what extent the property destroyed was insured in other companies. Appellant having filed the general issue, we are at a loss to understand how it can suppose this objection can arise on this record. We presume appellant must know that the objection, if it had any force, must be urged on demurrer, and that, too, before the declaration is traversed. This is so elementary that, we presume, all members of the profession know and understand it.

But if it could be raised, we do not understand it as having any force. The general rule is, that, where a right is conferred by a clause, absolute and unconditional in its terms, but the right is limited in a subsequent clause by a condition or exception, the pleader is not required to negative the condition or exception, but it is for the defense to plead it. But when the condition or exception is contained in or referred to by the clause giving the right, then the plaintiff must set out and negative the condition or exception. See 1 Chit. Pl. 256,

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and previous decisions of this court. Now, there was no condition or exception contained in the body of this policy. It insured the property against loss by fire, and permitted other insurance. And this declaration was sufficient. If the clause that appellees should only recover any greater proportion of loss than the amount hereby insured bears to the whole sum insured. had been contained in the clause agreeing to insure the property, then it may be the position of appellant would be correct. But this latter clause is in a subsequent place in the policy, and falls within the rule. The rule applies to suits on statutes as well as on contracts, and is well illustrated in actions on penal bonds with conditions annexed. Until our statute changed the practice, it was the uniform course to declare on the bond, leaving the defendant to set up the condition by plea.

We deem it unnecessary to notice the other objections urged. It is the province of the jury to weigh and consider the evidence, and it would be unfair in us to discuss it on this record, but it is proper to leave it for another jury to pass upon under proper instructions from the court.

For the error in not allowing the motion for a change of venue, the judgment of the court below is reversed and the cause remanded.

Judgment reversed.

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1. FRAUDULENT CONVEYANCES — a conveyance of property to place it beyond the reach of creditors is fraudulent in law. A debtor in failing circumstances is only allowed to place his property beyond the reach of his creditors by making a general assignment of it, when he does so for the benefit of the creditors, by devoting it unreservedly to the payment of

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Syllabus.

his debts, and not with a view to his advantage, in delaying until a favor. able time the appropriation of the property for such purpose.

2. A conveyance by a debtor in failing circumstances of all his prop erty, for the purpose of placing it out of the reach of creditors, not for the purpose of depriving them of all benefit of the property, but to prevent its sacrifice for the payment of their claims by enforcement of legal remedies, and to await favorable opportunities for disposing of the property and applying it to the satisfaction of the claims, is fraudulent in law, although there may be no fraud in fact intended by such debtor.

3. SAME when only constructively fraudulent may be upheld as to one guilty of no actual fraud. Where a security or conveyance is set aside as constructively fraudulent, it may be upheld in favor of one not guilty of any actual fraud to the extent of the actual consideration, and be vacated as to the excess.

4. SAME-conveyance by grantee in a fraudulent conveyance to secure a bona fide debt of the debtor grantor. A debtor in failing circumstances conveyed to his brother all his property, and the brother took up notes which the owner of the property owed to another brother, and gave his own notes for the amount thereof, with the understanding that he was to pay them out of the proceeds of the sale of the property conveyed to him, or he was to have the privilege of paying in property, at cash value. Afterwards he conveyed to the brother holding his notes a portion of the property, with a verbal agreement that, upon payment of the notes, the property so conveyed should be reconveyed to him: Held, that although the conveyance by the failing debtor to his brother was fraudulent as against creditors, yet the conveyance by that brother to the other, being for the purpose of securing a bona fide indebtedness, was not void, but should be treated as a mortgage; and that upon a creditor's bill to set aside such conveyances, the decree should be that such second conveyance be treated as a mortgage, and that the debt intended to be secured thereby have precedence over the other debts of the debtor, and be first paid.

5. CREDITOR'S BILL-personal decree against defendants not debtors. It is error, on a creditor's bill to set aside conveyances as fraudulent, to render a personal decree for the amount of the debts due to complainants as against one guilty of no fraud and not a debtor.

6. SAME-effect of discharge of debtor in bankruptcy. Where a debtor, after a creditor's bill is filed against him, is declared a bankrupt, and as such discharged, and sets up his discharge in that suif, the effect is to preclude the court from rendering a personal decree against him, but it can not preclude the court from dealing with the property alleged to have been fraudulently conveyed, in the creditor's bill.

Opinion of the Court.

APPEAL from the Circuit Court of Henderson county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. STEWART, PHELPS & STEWART, Messrs. SKINNER & MARSH, and Mr. O. H. BROWNING, for the appellants.

Mr. C. M. HARRIS, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a creditors' bill, brought by certain judgment. creditors of S. S. Phelps & Co. against Stephen S. Phelps, William Phelps and Myron Phelps, for the discovery of assets, and to subject certain property which had been conveyed by Stephen S. Phelps and Arthur S. Phelps, composing the firm of S. S. Phelps & Co., to the payment of the complainants' demands.

A decree was rendered against the defendants in the court below, from which they appealed.

Previous to August, 1861, S. S. Phelps & Co. had been largely engaged in the mercantile and banking business in Oquawka, in this State, and S. S. Phelps, individually and as a member of the firms of S. S. Phelps & Co. and Phelps & Rice, was at that date indebted to the amount of some $174.000, and he, and said firm of S. S. Phelps & Co.. being pressed for payment of their indebtedness, and in failing circumstances, S. S. Phelps, about that time. by different conveyances, conveyed to his brother, William Phelps, large quantities of real estate, and made transfers to him of a large amount of notes and accounts and other personal property. S. S. Phelps and Arthur Phelps conveyed some real estate in like manner. These conveyances and transfers comprised, essentially, all of the property of S. S. Phelps. Subsequently, William Phelps conveyed a portion of such real estate to another brother, Myron Phelps.

The main object of the bill is to impeach these conveyances and transfers as being fraudulent as against creditors. In the

Opinion of the Court.

respect that the decree finds the conveyances and transfers from S. S. Phelps, and from him and Arthur to William Phelps, to be fraudulent as against creditors, we are entirely satisfied with its correctness. It appears, that on the 21st of August, 1861, S. S. Phelps conveyed to William Phelps a large amount of real estate, for the expressed consideration of $39,787, for which the latter executed to the former his three promissory notes, for $13,262.33 each, payable in four, five and six years, with interest. The proofs abundantly show that this was but in form a sale-that it was in reality but a device to place the property in the hands of William beyond the reach of creditors, to prevent its appropriation by them in legal mode, to the satisfaction of their debts against S. S. Phelps. The same may be said with respect to the other conveyances and transfers declared void by the decree.

The answers of the defendants were required to be under oath, and they fully deny, in their answers, all fraud or intention to defraud; and it is insisted, that the answers must be taken as conclusive in this respect, there not being sufficient countervailing proof. There might have been no intention to actually defraud creditors, and the defendants might well have answered, under oath, as their conclusion, that there was no fraud, and yet there have been a legal fraud. We can not think, from the evidence, that there was any actual defrauding of creditors intended, by depriving them of all benefits of the property, but that the purpose was to place it without the reach of creditors, to prevent its sacrifice for the payment of their claims by enforcement of legal remedies, and to await opportunities, as they might afterward arise, for advantageously disposing of the property, and to apply the proceeds toward the satisfaction of such claims, the parties believing, perhaps, that the arrangement would be for the best interests of the creditors, as a whole. But the creditors were, by the conveyances, effectually hindered and delayed in the collection of their demands; they were prevented from resort to the property; the debtor deprived himself of all means for

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