is sufficient to establish the insolvency of the debtor, and it is not necessary that the complaint should have alleged insolvency." The fact of insolvency is important only as it bears on the question whether or not the conveyance is fraudulent as against the ereditor who assails it." In New York the rule is that a complaint which sufficiently alleges fraudulent intent need not allege the insolvency of the debtor. The evidence necessary to support allegations of a fraudulent intent may be and usually is, made up of different facts and circumstances, but it is not necessary to insert them in a pleading, and it is generally improper to do so. Insolvency, while a fact, is an evidential fact which need not be alleged. It is involved in a finding of fraud, provided it is necessary to support that finding." It is only where one makes a voluntary conveyance in good faith, with no intent to defraud his creditors, that it will be upheld by proof showing that when he made it he retained an ample estate to pay all his debts.73 Such an allegation although not essential, may be useful where it is necessary for plaintiff to show actual fraud."

70. Quinn v. People, 146 Ill. 275, 34 N. E. 148; Stuckwisch v. Holmes, 29 Ind. App. 512, 64 N. E. 894; Breitkreutz v. Holton Nat. Bank (Kan. 1905), 79 Pac. 686; Nebraska Nat. Bank v. Hallowell, 63 Neb. 309, 88 N. W. 556; Page v. Grant, 9 Or. 116; McAvoy v. Jennings (Wash. 1906), 87 Pac. 53; Bates v. Drake, 28 Wash. 447, 68 Pac. 961; Reed v. Loney, 22 Wash. 433, 61 Pac. 41. Contra.-Williams v. Kemper (Minn. 1906), 109 N. W. 242, in an action to subject property conveyed in trust for the use of a debtor.

71. Rhead v. Hounson, 46 Mich. 243, 9 N. W. 267.

72. Vollkommer v. Cody, 177 N. Y. 124, 69 N. E. 277; Kain v. Larkin, 141 N. Y. 144, 36 N. E. 9; Citizens' Nat. Bank v. Hodges, 80 Hun (N.

Y.), 471, 30 N. Y. Supp. 445; Fuller v. Brown, 76 Hun (N. Y.), 557, 28 N. Y. Supp. 189.

Where plaintiff sued to set aside a conveyance of real property as in fraud of creditors, and the complaint alleged that the conveyance was without consideration and with intent to defraud plaintiff's assignor and other creditors of the grantor, all with the knowledge of the grantee, it sufficiently alleged the insolvency of the grantor. Holland v. Grote, 56 Misc. Rep. (N. Y.) 370, 107 N. Y. Supp. 667.

73. Fox v. Moyer, 54 N. Y. 125, 131.

74. Nealis v. American Tube, etc., Co., 76 Hun (N. Y.), 220, 27 N. Y. Supp. 733; Kain V. Larkin, 66 Hun (N. Y.), 209, 20 N. Y. Supp. 938.

§ 8. Necessity of alleging facts constituting fraud.-Equity will not entertain a creditors' bill to set aside a debtor's conveyance as fraudulent, brought against one claiming title and against whom no fraud is charged.75 Fraud is never presumed, and whenever it constitutes an element of a cause of action, or of a defense which is of an affirmative nature, and is invoked as conferring a right against the opposite party, it must be alleged." In a pleading attacking a conveyance as fraudulent towards the grantor's creditors, it is not sufficient to allege the fraud in general terms, as for example, that it was fraudulently given with intent to hinder and delay creditors, but the facts constituting or tending to show fraud must be specifically stated. Vague and general allegations as to fraud are insufficient, but the circumstances from which fraud may be reasonably inferred must be pleaded." Cases in which the complaint was held to

75. Spaulding v. Myers, 64 Ind. 264; Lawrence v. Bowman, 6 Rob. (La.) 21; Towle v. Janvrin, 61 N. H. 605. But see Hamlen v. McGillicuddy, 62 Me. 268, a bill brought under the statute need contain only the requirements of the statute.

76. Wetherly v. Strauss, 93 Cal. 283, 28 Pac. 1045, a transfer of money from a husband to a wife cannot be attacked as fraudulent under allegations that the money was never her separate property, but was at all times that of the husband, and that it was deposited by her and a certificate of deposit taken therefor as agent of her husband; but the fraud must be pleaded.

77. N. Y.-Bodine v. Edwards, 10 Paige, 504.

U. S.-Williamson v. Beardsley, 137 Fed. 467.

Ala.-Little v. Sterne, 125 Ala. 609, 27 So. 972; Warren v. Hunt, 114 Ala. 506, 21 So. 939; Coal City Coal, etc., Co. v. Hazard Powder Co., 108 Ala.

218, 10 So. 393; Heinz v. White, 105 Ala. 670, 17 So. 185; Curran v. Olmstead, 101 Ala. 692, 14 So. 398; Loucheim v. First Nat. Bank, 98 Ala. 521, 13 So. 374; Phoenix Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31; Pickett v. Pipkin, 64 Ala. 520; Flewellen v. Crane, 58 Ala. 627.

Ark.-Knight v. Glasscock, 51 Ark. 390, 11 S. W. 580.

Cal.-Albertoli V. Branham, 80 Cal. 631, 22 Pac. 404, 13 Am. St. Rep. 200; Fox v. Dyer (1899), 22 Pac. 257; Pehrson v. Hewitt, 79 Cal. 594, 21 Pac. 950; Castle v. Bader, 23 Cal. 75; Oakland v. Carpenter, 21 Cal. 642; Harris v. Taylor, 15 Cal. 348; Kinder v. Macy, 7 Cal. 206.

Colo.-Brereton V. Bennett, 15 Colo. 254, 25 Pac. 310; Burdsall v. Waggoner, 4 Colo. 256; Fox v. Lipe, 14 Colo. App. 258, 59 Pac. 850.

Ga.-Rowland v. Coleman, 45 Ga.

204.

Ill.-Klein v. Horine, 47 Ill. 430.
Ind.-Old Nat. Bank v. Heckman,

state facts sufficient to show fraud and to be sufficient as a matter of pleading, and other cases in which the facts set forth were

held to be insufficient," are cited in the notes below. It has been held in New York that in an action to set aside a conveyance fraudulent as to creditors on its face, it is not necessary that the complaint should specify the objectionable clauses. It is sufficient to allege that the conveyance was made to defraud creditors. It is the intent on which the statute fastens, and the law treats certain provisions as conclusive evidence of such intent.80 The averment that a deed was made for the purpose of hindering, delaying and defrauding creditors of the grantor is a mere statement of a conclusion, and not only renders the bill or complaint demurrable, but it will not support a judgment depending upon the fraud in the conveyance.81 A bill to set aside a deed for fraud, which alleges the fraud on information and belief, is insufficient, in the absence of an allegation of facts on which the belief is founded.82 The admission, by filing a demurrer, of a general allegation that a deed was fraudulent, without

Ky.-Marcum v. Powers, 10 Ky. L. Rep. 380, 9 S. W. 255.

La.-Blum v. Wyly, 111 La. 1092, 36 So. 202.

Miss.-Pine Cone Lumber Co. v. White Sand Lumber Co. (1905), 38 So. 188.

Neb.-Chamberlain Banking House v. Turner-Frazer Mercantile Co., 66 Neb. 48, 92 N. W. 172.

N. H.-Alden v. Gibson, 63 N. H. 12.

N. J. Bayley v. Bayley, 66 N. J. Eq. 84, 57 Atl. 271; Couse v. Columbia Powder Mfg. Co. (Ch. 1895), 33 Atl. 297.

N. D.-Paulson v. Ward, 4 N. D. 100, 58 N. W. 792.

8. C.-Meinhard v. Youngblood, 37 S. C. 321, 15 S. E. 950, 16 S. E. 771. Va.-American Net, etc., Co. v. Mayo, 97 Va. 182, 33 S. E. 523.

W. Va.-Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. 611; Watkins v. Wortman, 19 W. Va. 78.

Wis.-Level Land Co. No. 3 v. Sivyer, 112 Wis. 442, 88 N. W. 317; Allen v. McRae, 91 Wis. 226, 64 N. W. 889; Marston v. Dresen, 76 Wis. 418, 45 N. W. 110.

79. Lipperd v. Edwards, 39 Ind. 165; Anderson v. Lindberg, 64 Minn. 476, 67 N. W. 538; Lackner v. Sawyer, 5 Neb. (Unoff.) 257, 98 N. W. 49; Burr v. Davis (Tex. Civ. App. 1896), 36 S. W. 137. See also Wilcoxson, etc., Banking House v. Darr, 139 Mo. 660, 41 S. W. 227.

80. Jessup v. Hulse, 29 Barb. (N. Y.) 539, rev'd on another point 21 N. Y. 168; Hastings v. Thurston, 10 Abb. Pr. (N. Y.) 418, 18 How. Pr. (N. Y.) 430.

81. Leasure v. Forquer, 27 Or. 334, 41 Pac. 665.

82. Brooks v. O'Hara, 8 Fed. 529; Murphy v. Murphy, 189 Ill. 360, 59 N. E. 796; Walton v. Westwood, 73 Ill. 125; Wilkinson v. Goodin, 71 Mo. App. 394.

83

setting out in what particular, does not sustain a bill otherwise deficient in equity. If, however, the facts are well pleaded, a demurrer admits the fraudulent transfer charged. A bill to set aside a conveyance as in fraud of creditors, alleging in the alternative different agreements as constituting the fraud, is bad as a whole of either alternative is bad.$5 85

9. Facts need not be minutely alleged. While a mere general allegation of fraud is insufficient, as has already been shown, it is not necessary or required that all the particular facts and circumstances which conduce to prove the general charge, or which confirm and assist, should be minutely alleged or set forth in detail. A general averment or statement of the matters of fact, from which, unexplained, the conclusion of fraud arises, is sufficient, leaving the circumstances to be proven. The substantial facts out of which the rights and liabilities sought to be enforced arose should be alleged, but not the circumstances out of which these facts arise and are to be made to appear. The latter are properly matters of evidence.$7

83. Flewellen v. Crane, 58 Ala. 627; Bryan v. Spruill, 57 N. C. 27.

84. Riley v. Carter, 76 Md. 581, 25 Atl. 667, 35 Am. St. Rep. 443, 19 L. R. A. 489; Large v. Bristol Steam Tow-Boat, etc., Co., 2 Ashm. (Pa.) 394.

85. Mountain v. Whitman, 103 Ala. 630, 16 So. 15.

86. N. Y.-Passavant v. Sickle, 14 Civ. Proc. R. 57.

Ala.-Gassenheimer v. Kellogg, 121 Ala. 109, 23 So. 29; Williams v. Spragins, 102 Ala. 424, 15 So. 247; Burford v. Steele, 80 Ala. 147; Pickett v. Pipkin, 64 Ala. 520; Kennedy v. Kennedy, 2 Ala. 571.

Cal.-Threlkel v. Scott (1893), 34 Pac. 851.

Conn.-Mallory V Gallagher, 75 Conn. 665, 55 Atl. 209.

86

La.-Hillard v. Taylor, 114 La. 883, 38 So. 594.

Mich.-McMahon v. Rooney, 93 Mich. 390, 53 N. W. 539; Reeg v. Burnham, 55 Mich. 39, 20 N. W. 708, 21 N. W. 431; Merrill v. Allen, 38 Mich. 487; Tong v. Marvin, 15 Mich. 60.

W. Va.-Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. 553. See also Miller v. Gillespie, 54 W. Va. 450, 46 S. E. 451.

Can.-Wright v. Henderson, 1 U. C. Q. B. O. S. 304.

87. De Hierapolis v. Lawrence, 115 Fed. 761.