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fraud, and where the instrument of transfer is incorporated in the complaint, and is void on its face, the defendant may take advantage of that fact without pleading fraud.28 In other jurisdictions it is held that where the plaintiff has alleged his ownership, without indicating the source thereof, the defendant may prove that plaintiff's title was fraudulent as to creditors under a denial of plaintiff's title, and he need not specially plead such facts, but if he does proceed to set up the acts of fraud which he charges render plaintiff's title invalid, he must state facts which are sufficient in law to that end, and not aver fraud in general terms.30 In an action by creditors to set aside a conveyance of realty alleged to have been made in fraud of their rights, the defendant may, under a general denial, give evidence of any fact tending to disprove the charge of fraud and show the good faith of the transaction.31 He may show that the property was exempt and could not have been seized upon execution if it had been retained by the grantor.32

Mont.-Botcher v. Berry, 6 Mont. 448, 13 Pac. 45.

Under a general denial defendant has no right to prove a defense founded on new matter. Weaver v. Barden, 49 N. Y. 286.

27. Beaty v. Swarthout, 32 Barb. (N. Y.) 293; Avery v. Mead, 12 St. Rep. (N. Y.) 749; Chapman v. James, 96 Iowa, 233, 64 N. W. 795. But see Carter v. Bowe, 41 Hun (N. Y.), 516, an allegation in the answer that the property belonged to the judgment debtor is sufficient to admit proof of the fraudulent transfer.

28. Dearing v. McKinnon Dash, etc., Co., 33 App. Div. (N. Y.) 31, 53 N. Y. Supp. 513.

29. Kan.-Miami County Nat. Bank v. Barkalow, 53 Kan. 68, 35 Pac. 796.

La.-Devonshire v. Gauthreaux, 32 La. Ann. 1132.

But if he have an affirma

Minn.-Furman v. Tenny, 28 Minn. 77, 9 N. W. 172; Tupper v. Thompson, 26 Minn. 385, 4 N. W. 621.

8. C.-Archer v. Long, 38 S. C. 272, 16 S. E. 998; Paris v. Dupre, 17 S. C. 282.

Wis.-Welcome v. Mitchell, 81 Wis. 566, 51 N. W. 1080, 29 Am. St. Rep. 913; Blakeslee v. Rossman, 44 Wis. 553.

30. Eaton v. Metz (Cal. 1895), 40 Pac. 947; Mason v. Vestal, 88 Cal. 396, 26 Pac. 213, 22 Am. St. Rep. 310.

31. Ray v. Teabout, 65 Iowa, 157, 21 N. W. 497; Plummer v. Rohman, 62 Neb. 145, 87 N. W. 11.

32. Isgrigg v. Pauley, 148 Ind. 436, 47 N. E. 821; Furth v. March, 101 Mo. App. 329, 74 S. W. 147; Hibben v. Soyer, 33 Wis. 319.

tive defense he must allege the facts relied upon, or he will be precluded from introducing any evidence thereof.33 Where a want of consideration is charged in the bill, defendant must set out the consideration in order to be permitted to prove a valuable consideration.34 Where want of consideration for the conveyance or any other negative fact forms an essential part of the plaintiff's case or defendant's defense, it must be alleged in the pleading, although the burden of proof rest upon the other party.

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§ 33. Confession and avoidance. Where an answer is put in issue, what is admitted by it need not be proved; but if defendant admits one fact, and insists upon a distinct fact by way of avoidance, he must prove the matter in avoidance.36

ance.

§ 34. Variance. The material allegations in the bill and the proofs thereunder must agree or be in substantial accord in order to authorize a decree setting aside a fraudulent conveyOtherwise there is a variance which is fatal to recovery, since a party cannot sue on one cause of action and recover on another. But while it is generally true that the case stated in a bill of equity must be sustained by the evidence, this rule will not prevent the court from granting the relief prayed for where

33. Robinson, v. Moseley, 93 Ala. 70, 9 So. 372; Shaw v. Manchester, 84 Iowa, 246, 50 N. W. 985; Wang v. Finnerty, 32 La. Ann. 94; Hart v. Schenck, 32 N. J. Eq. 148.

34. Noble v. Gilliam, 136 Ala. 618, 33 So. 861; Gorman v. Glenn, 25 Ky. L. Rep. 755, 78 S. W. 873.

35. Meyer-Marx Co. v. Masters, 119 Ala. 186, 24 So. 506.

36. Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62; Clements v. Nicholson, 73 U. S. 299, 18 L. Ed. 786; Clarke v. White, 37 U. S. 179, 9 L. Ed. 1046; Yost v. Hudibury, 70 Tenn. 627.

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the case proved does not materially differ from the case stated. An allegation in a creditors' bill that lands therein described are held in trust for the debtor will not be sustained by proof that the debtor purchased the lands with his own funds, and took the deed thereof in the name of his daughters as an absolute gift, and the complainant's debt was contracted previous thereto, and the debtor was insolvent at the time of the purchase.39 And where it is alleged that conveyances of real estate were made to defraud existing creditors, and the proofs show such conveyances were executed and delivered prior to the incurring of the indebtedness, the petition under the proofs will not sustain a decree in favor of the plaintiff. But where a complaint alleges that a conveyance was voluntary, and given and accepted with intent to defraud the grantor's creditors, the omission to show a want of consideration is not fatal where the deed on the other allegations of the complaint would be fraudulent even though there were a valuable consideration."

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§ 35. Disclaimer.-One who is without interest in a suit to set aside a fraudulent conveyance should file a disclaimer in order to protect himself against judgment, and should not appear and answer.42 Where defendant husband and wife, in anticipation of plaintiff's action, conveyed land, the separate property of the wife, to a third party, and plaintiff, having levied on the land under attachment against the husband, purchased it, and sued

38. U. S.-Alabama Iron, etc., Co. v. Austin, 94 Fed. 897, 36 C. C. A. 536.

Ala.-Moog v. Barrow, 101 Ala. 209, 13 So. 665.

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

Ind.-Slagel v. Hoover, 137 Ind. 314, 36 N. E. 1099.

La.-Mackesy v. Shultz, 38 La. Ann. 385.

Mo.-Erfort v. Consalus, 47 Mo.

208.

Va.-Campbell v. Bowles, 30 Gratt.

652.

W. Va.-Keneweg Co. v. Schilansky, 47 W. Va. 287, 34 S. E. 773. 39. Bodine v. Edwards, 10 Paige (N. Y.), 504.

40. Ayers v. Wolcott, 66 Neb. 712, 92 N. W. 1036.

41. Slagel v. Hoover, 137 Ind. 314, 36 N. E. 1099.

42. Tyler v. Davis (Ind. App. 1905), 75 N. E. 3.

for its possession against the husband and wife and such third person without consideration reconveyed to the wife, the disclaimer of such third person in the suit did not vest title in plaintiff.

43. Burnham v. McMichael, 6 Tex. Civ. App. 496, 26 S. W. 887.

CHAPTER XVII.

EVIDENCE.

Section 1. Presumptions and burden of proof generally.
2. Burden of proof under pleadings.

3. Fraudulent character of transaction in general.
4. Transactions between parties generally.

5. Transactions between husband and wife.

6. Plaintiff's right to sue.

7. Nature and value of property conveyed.

8. Solvency or insolvency of grantor.

9. Consideration.

10. Knowledge and intent of grantee.

11. Retention of possession.

12. Reservations and trust for grantor.

13. Intent to defraud subsequent purchasers.

14. Good faith of purchasers from grantee.

15. Presumption from failure to testify or produce evidence.

16. Admissibility and relevancy of evidence in general.

17. Financial condition of parties.

18. Pendency or threat of action.

19. Declarations and acts of grantor.

20. Statements of debtor as to financial condition.

21. Other and separate fraudulent conveyances and transactions.

22. Subsequent conduct of parties and persons interested.

23. Testimony of parties as to their motive, purpose or intent.

24. Fraudulent instrument or conveyance.

25. Admissibility of pleadings in evidence.

26. Nature and form of transaction.

27. Plaintiff's right to sue.

28. Attack on plaintiff's right to sue.

29. Proof of date of plaintiff's claim.

30. Indebtedness of grantor.

31. Solvency or insolvency of grantor.

32. Consideration in general.

33. Statements of parties; books of accounts.

34. Recitals in instrument of transfer.

35. Knowledge and intent of grantee generally.

36. Knowledge of grantor's indebtedness or insolvency.

37. Testimony of grantee as to his own knowledge or intent.

38. Participation in fraudulent intent.

39. Separate conveyances or transactions.

40. Good faith of purchaser from grantee.

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