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creditors of the husband and the wife there is, and there should be, a presumption against her which she must overcome by affirmative proof." Where a husband prefers his wife as a creditor, the burden is on the wife to show that the preference was to pay or secure a subsisting and valid debt.2 But while the burden of proof rests upon a wife who has received a conveyance from an insolvent husband to show a valuable consideration therefor, proof of such consideration paid out of her separate estate, or by some third person for her, shifts the burden to one seeking to set aside such conveyance to show that it was fraudulent.43 The rule as to the purchase of property by the wife from the husband that, in a contest between her and his creditors, the burden of proof is upon her to show that it was in good faith and for a valuable consideration applies where creditors of the husband seek to reach improvements erected on the wife's land by the husband." But the rule does not apply to the purchase of exempt property, nor, according to some authorities, where the property is conveyed to the wife by a person other than her husband," or where the conveyance is attacked by a

41. Yates v. Law, 86 Va. 117, 120, 9 S. E. 508.

42. Ga.-Cruger v. Tucker, 69 Ga. 557.

La.-Darcy v. Labennes, 31 La. Ann. 404; Brassae v. Ducros, 4 Rob. 335; Bostwick v. Gasquet, 11 La. 534. Md. Stockslager V. Mechanics' Loan, etc., Inst., 87 Md. 232, 39 Al. 742.

Mich.-Manhard Hardware Co. v. Rothschild, 121 Mich. 657, 80 N. W. 707.

Pa.-Wilson v. Silkman, 97 Pa. St.

509.

Va.-Fidelity Loan, etc., Co. v. Engleby, 99 Va. 168, 37 S. E. 957; Runkle v. Runkle, 98 Va. 663, 37 S. E. 279; Darden v. Ferguson (1897), 27 S. E. 435; Rixey v. Deitrick, 85 Va. 42, 6 S. E. 615.

W. Va.-Livey v. Winton, 30 W. Va. 554, 4 S. E. 451.

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Wis.-Hoey v. Pierron, 67 Wis. 262, 30 N. W. 692.

Can.-Rice v. Rice, 31 Ont. 59. Contra.-Rhodes v. Wood, 93 Tenn. 702, 28 S. W. 294.

43. Peeler v. Peeler, 109 N. C. 628, 14 S. E. 59; Brickley v. Walker, 68 Wis. 563, 32 N. W. 773; Evans v. Rugee, 57 Wis. 623, 16 N. W. 49; Semmens v. Walters, 55 Wis. 675, 13 N. W. 889.

44. Seasongood v. Ware, 104 Ala. 212, 16 So. 51; Edwards v. Entwisle, 2 Mackey (D. C.), 43.

45. Allen v. Perry, 56 Wis. 178, 14 N. W. 3. See Exempt property, chap. IV, § 41, supra.

46. Rice v. Allen (Neb. 1903), 95 N. W. 704; Osborne v. Wilkes, 108 M. C. 651, 13 S. E. 285; Welsh v. Solenberger, 75 Va. 441, 9 S. E. 91; Arndt v. Harshaw, 53 Wis. 269, 10 N. W. 390.

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subsequent creditor of the husband.47 The burden is in the attacking creditor to prove that the acts of a wife in carrying on a business, or in employing her husband as her agent, were not in good faith; it cannot be held as a presumption of law. A wife who turns remittances from her husband into a business which she carries on and out of which the family is supported, has the burden of proving, as against the husband's creditors, that their rights have not been injured thereby, and that an equivalent sum was properly and actually consumed by the husband's family." The creditors of a husband who seek to set aside as fraudulent a conveyance to his wife, upon an averment, denied by an answer, that the recited consideration was fictitious and colorable,50 or that it was the money of the husband,51 are charged with the burden of proving such averment.

6. Plaintiffs' right to sue. In an action by a creditor to set aside an alleged fraudulent conveyance, the burden is on the creditor to show that he is a creditor, and to prove the existence of a subsisting debt to which the property alleged to have been fraudulently conveyed would be subject.52 Creditor's claims will not.

47. See Intent to defraud subsequent creditors, chap. XVII, § 13, infra.

48. Woodworth v. Sweet, 51 N. Y. 8; Kluender v. Lynch, 2 Abb. Dec. (N. Y.) 538; Coyne v. Sayre, 54 N. J. Eq. 702, 36 Atl. 96. See Services rendered by husband for wife, chap. IV, § 13, supra.

49. Trefethen v. Lynam, 90 Me. 376, 38 Atl. 335, 38 L. R. A. 190.

50. Young v. Hurst (Tenn. Ch. App. 1898), 48 S. W. 365.

51. Walters v. Brown (Tenn. Ch. App. 1898), 46 S. W. 777.

52. Ala.-Russell v. Davis, 133 Ala. 647, 31 So. 514, 91 Am. St. Rep. 56; Lawson v. Alabama Warehouse Co., 73 Ala. 289; Pickett v. Pipkins, 64 Ala. 520.

Ark.-Clark v. Anthony, 31 Ark.

546.

Iowa.-State Ins. Co. v. Prestage, 116 Iowa, 466, 90 N. W. 62; Pidcock v. Voorhies, 84 Iowa, 705, 42 N. W. 646, 49 N. W. 1038.

La. Hannay v. Maxwell, 24 La. Ann. 49; De Young v. De Young, 6 La. Ann. 786; Fink v. Martin, 1 La. Ann. 117; Lafleur v. Hardy, 11 Rob. 493.

Minn.-Bloom v. Moy, 43 Minn. 397, 45 N. W. 715, 19 Am. St. Rep. 243; Braley v. Byrnes, 20 Minn. 435. Mo.-Davis v. Biscoe, 81 Mo. 27. N. J.-Cocks v. Varney, 45 N. J. Eq. 72, 17 Atl. 108.

Tex.-Kerr v. Hutchins, 46 Tex.

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without proof, be presumed to have existed at the time of a conveyance attacked as fraudulent.5 Where a substitute note is accepted in satisfaction of a judgment, the presumption is that it was accepted in satisfaction of the debt represented by the judgment, so as to validate, as against the judgment, a settlement subsequently made by the judgment debtor on his wife and children.54

§ 7. Nature and value of property conveyed.—The burden of proof is upon the plaintiff, in an action to test the validity of a transfer of property alleged to have been fraudulent as to creditors, to establish that the property conveyed was liable to be subjected to the satisfaction of debts and therefore a subject for a transfer which might be fraudulent as to creditors.55 But where defendant alleges that the property transferred was exempt as a homestead, the burden is on him. to prove such fact,56 and that the value of the property conveyed did not exceed the homestead exemption," where the plaintiff made out a prima facie case of fraudulent conveyance. The burden of proving that the property alleged to have been fraudulently conveyed was of no substantial value is on the defendant, and it cannot be presumed in the absence of evidence. 58

§ 8. Solvency and insolvency of grantor.-In an action to set aside a conveyance the debtor's insolvency, shown or conceded to exist at one time, will be presumed to have continued,59 but proof that the debtor was insolvent some time after the sale or transfer will not raise a presumption of insolvency at the time of the sale or transfer, the presumption as to the continuance of things shown to exist not having any backward operation. It has been

53. Tunison v. Chamblin, 88 Ill. 378.

54. Morriss v. Harveys, 75 Va. 726.

55. Furth v. March, 101 Mo. App. 329, 74 S. W. 147; Darling v. Ricker, 68 Vt. 471, 35 Atl. 376.

56. Pace v. Robbins, 67 Ark. 232, 54 S. W. 213; State Ins. Co. v. Prestage, 116 Iowa, 466, 90 N. W. 62.

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57. Pace v. Robbins, supra.

58. Fryberger v. Bergen, 88 Minn. 311, 92 N. W. 1125.

59. Adams v. State, 87 Ind. 573; Burlington Protestant Hospital Assoc. v. Gerlinger, 111 Iowa, 293, 82 N. W. 765; Cozzens v. Holt, 136 Mass. 237.

60. Nevers v. Hack, 138 Ind. 260, 37 N. E. 791, 46 Am. St. Rep. 380; Martin v. Fox, 40 Mo. App. 634.

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held, however, that where a debtor is insolvent at the time judg ment is rendered, his insolvency will be presumed to extend back beyond a voluntary conveyance made during his indebtedness. A conveyance of land may not be condemned as a fraud upon creditors of the grantor merely because not founded upon a valuable consideration. That it was made with fraudulent intent must be proved, and the burden of showing that it was executed in bad faith and left the grantor insolvent, and without ample property to pay his existing debts and liabilities, is upon the plaintiff. But the rule is generally maintained that a voluntary conveyance by one indebted at the time is presumptively fraudulent, and that where a conveyance not purporting to be based on a valuable conIsideration is attacked by a creditor, whose debt was in existence at the time of the transfer, the burden is on the defendant to prove that the grantor retained sufficient means to pay existing creditors.63 Where the complaint alleges a conveyance of all the

61. Strong v. Lawrence, 58 Iowa, 55, 12 N. W. 74; Carlisle v. Rich, 8 N. H. 44.

62. Kain v. Larkin, 131 N. Y. 300, 30 N. E. 133; Lewis v. Boardman, 78 App. Div. (N. Y.) 394, 79 N. Y. Supp. 1014; Kalish v. Higgins, 70 App. Div. (N. Y.) 192, 75 N. Y. Supp. 397, aff'd 175 N. Y. 495, 67 N. E. 1084; American Forcite Powder Mfg. Co. v. Hanna, 31 App. Div. (N. Y.) 317, 52 N. Y. Supp. 547; Nevers v. Hack, 138 Ind. 260, 37 N. E. 791, 46 Am. St. Rep. 380; Hogan v. Robinson, 94 Ind. 128; Bishop v. State, 83 Ind. 67; Greer v. Richardson Drug Co., 1 Tex. Civ. App. 634, 20 S. W. 1127.

63. N. Y.-Smith v. Reid, 134 N. Y. 568, 31 N. E. 1082; Baker v. Potts, 73 App. Div. 29, 76 N. Y. Supp. 406; Hyde v. Wolf, 31 App. Div. 125, 52 N. Y. Supp. 764; Sands v. Hildreth, 14 Johns. 493.

Ark.-Norton v. McNutt, 55 Ark. 59, 17 S. W. 362.

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Ga.-Cohen v. Parish, 100 Ga. 335, 28 S. E. 122; Cothran v. Forsyth, 68 Ga. 560.

Iowa.-Crary v. Kurtz (1906), 105 N. W. 590; Campbell v. Campbell (1906), 105 N. W. 583; Woods v. Allen, 109 Iowa, 484, 80 N. W. 540; Strong v. Lawrence, 58 Iowa, 55, 12 N. W. 74; Elwell v. Walker, 52 Iowa, 256, 3 N. W. 64.

Md.-Dawson v. Waltemeyre, 91 Md. 328, 46 Atl. 994; Goodman v. Wineland, 61 Md. 449; Ellinger v. Crowl, 17 Md. 361; Glenn v. Grover, 3 Md. 212; Sewell v. Baxter, 2 Md. Ch. 447; Atkinson v. Phillips, 1 Md. Ch. 507.

Mich.-Wilcox v. Hammond, 128 Mich. 516, 87 N. W. 636.

Miss.-Golden v. Goode, 76 Miss. 400, 24 So. 905; Ames v. Dorroh, 76 Miss. 187, 23 So. 768, 71 Am. St. Rep. 522; Young v. White, 25 Miss. 146.

Mo.-Clark v. Thias, 173 Mo. 628, 73 S. W. 616; Huffman v. Nolte, 127

grantor's real and personal estate and the answer denies this allegation and avers that the grantor after the conveyance was still seized and possessed of certain real estate abundantly sufficient to pay the claims of his creditors, the burden of proving the solvency of the grantor is on the defendant. But where the conveyance is based on a valuable consideration, this rule as to burden of proof does not apply, nor does it apply where a conveyance is attacked by a subsequent creditor. Where, in order to rebut the presumption of fraud arising from having made a voluntary conveyance, the debtor alleges that his debt existing at the time was afterwards paid, the burden of sustaining the allegation is upon him.67

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§ 9. Consideration. It is the general rule that where a transfer purporting to be based on a valuable consideration is alleged, by a creditor whose debt existed at the time of the conveyance, to be fraudulent, because without consideration, the burden of proving the fraud and that the recitals of consideration in the deed are false is on the party alleging it, and where the conveyance was to pay or secure a pre-existing

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Mo. 120, 29 S. W. 847; American
Nat. Bank v. Thornburrow, 109 Mo.
App. 639, 83 S. W. 771.

N. M.-First Nat. Bank v. McClellan, 9 N. M. 636, 58 Pac. 347.

N. C.-Ricks v. Stancil, 119 N. C. 99, 25 S. E. 721.

Ohio. Oliver v. Moore, 23 Ohio St. 473; Jones v. Leeds, 10 Ohio S. & C. Pl. Dec. 173, 7 Ohio N. P. 480.

Pa.-Appeal v. Woolston, 51 Pa. St. 452.

Tenn.-Carpenter V. Scales (Ch. App. 1907), 48 S. W. 249.

Tex.-Maddox V. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567. Va.-Taylor v. Mallory, 96 Va. 18, 30 S. E. 472.

Wyo.-First Nat. Bank v. Swan, 3 Wyo. 356, 23 Pac. 743.

Can.-Thompson v. Doyle, 16 Can.

L. T. (Occ. Notes) 286; Brown v.
Davidson, 9 Grant Ch. (U. C.) 439.

Eng.-Mackey v. Douglass, L. R.
14 Eq. 106, 41 L. J. Ch. 539, 26 L. T.
Rep. N. S. 721; Crossley v. Elworthy,
L. R. 12 Eq. 158, 40 L. J. Ch. 480, 24
L. T. Rep. N. S. 607.

64. Birely v. Saley, 5 Gill & J. (Md.) 432, 25 Am. Dec. 303.

65. Doxsee v. Waddick, 122 Iowa, 599, 98 N. W. 483.

66. See Intent to defraud subsequent creditors, chap. XVII, § 13, infra.

67. Loeschigk v. Addison, 19 Abb. Pr. (N. Y.) 169.

68. N. Y.-Columbus Watch Co. v. Hodenpyl, 135 N. Y. 430, 32 N. E. 239, aff'g 61 Hun, 557, 16 N. Y. Supp. 337.

Conn.-Waterbury Lumber, etc.,

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