action in question." Acts and declarations of the parties relating to similar contemporaneous transactions with other parties are admissible in evidence.58 But evidence as to such other transactions is inadmissible in the absence of evidence that such other transactions were fraudulent,59 or that they were in some way connected in point of time or otherwise with the subsequent trans

action in controversy."

Where an insolvent debtor's transfer of goods is assailed by a creditor as fraudulent, evidence that the insolvent fraudulently transferred to a relative all his remaining property is admissible, as bearing on the question of the debtor's intent to defraud creditors.61 Evidence of other fraudulent transactions by the debtor is, however, inadmissible to prove the fraudulent intent towards creditors in making the conveyance attacked, where there is nothing to connect the grantee with the transaction.62 But evidence of such other transactions when competent to show a fraudulent intent in the grantor and when offered for that purpose only are not to be excluded because they do not bear also upon the intent of the grantee or his knowledge of the fraudulent intent of the grantor. It is not necessary that the same fact offered in evidence should prove both intents. If it proves the grantor's intent alone, but is a kind of evidence competent against the grantee, it is admissible. It would tend to prove one branch of the issue, leaving the other to be met in some different way.63 Where the transfer in controversy is shown to have been made in payment of a just

61. Beuerlien v. O'Leary, 149 N. Y. 33, 43 N. E. 417; Taylor v. Robinson, 84 Mass. 562; Whittle v. Bailes, 65 Mich. 640, 32 N. W. 874.

62. N. Y.-Ford v. Williams, 13 N. Y. 577, 67 Am. Dec. 83.

Ill. Schroeder v. Walsh, 120 Ill. 403, 11 N. E. 70.

Me.-Howe v. Reed, 12 Me. 515; Blake v. Howard, 11 Me. 202.

Mich.-Wessels v. Beeman, 87 Mich. 481, 49 N. W. 483.

N. H.-Blake v. White, 13 N. H. 267.

Pa.-Wolf v. Kohr, 133 Pa. St. 13, 19 Atl. 284.

63. Baldwin v. Short, 125 N. Y. 553, 26 N. E. 928, aff'g 54 Hun, 473, 7 N. Y. Supp. 717; Foster v. Hall, 29 Mass. 89, 22 Am. Dec. 400; Blake v. White, 13 N. H. 267. See also Pomeroy v. Bailey, 43 N. H. 118.

debt, evidence that the grantor at or about the same time made fraudulent transfers of other property is inadmissible."

66

§ 22. Subsequent conduct of parties and persons interested.— Although a conveyance which at the time of its execution is fair and valid as against creditors cannot become fraudulent and void by matters occurring afterwards, yet, in determining the intent with which it was executed, it is competent, as against the parties to it, to introduce evidence of the fraudulent acts of the parties after the execution to show fraud in its inception.65 Evidence of the fraudulent use subsequently made of a deed or mortgage may be shown to prove the fraudulent intent with which the instrument was made and that its execution was in fraud of creditors, but not for the purpose of showing the fraudulent use as an independent fact, as the creditors are not injured by the latter act.67 Evidence of the grantor's subsequent conduct may likewise be admissible to prove that a conveyance was made in good faith,68 and to rebut proof tending to show a fraudulent design it is proper to show that the entire proceeds of the sale were immediately applied in payment of the debts of the grantor. But the acts of the parties subsequent to the execution of the conveyance are in some instances not admissible evidence to prove it fraudulent." Evidence of conveyances of all their property by sureties to defraud the creditor is irrelevant upon the issue between such creditor and a vendee of the principal debtor as to the fraudulency of the sale of his prop

64. Bratt v. Catlin, 47 Barb. (N. Y.) 404.

65. Nixon v. Goodwin (Cal. App. 1906), 85 Pac. 169; Kelliher v. Sutton, 115 Iowa, 632, 89 N. W. 26; Main v. Lynch, 54 Md. 658; Blue v. Penniston, 27 Mo. 272; Furth Grocery Co. v. May, 78 Mo. App. 323; Sonnentheil v. Texas Guaranty, etc., Co., 10 Tex. Civ. App. 274, 30 S. W. 945.

66. Constantine v. Twelves, 29 Ala.

€9

607; Kelliher v. Sutton, 115 Iowa, 632; Shipman v. Seymour, 40 Mich. 274.

67. Kelliher v. Sutton, supra. 68. Cleveland v. Empire Mills, 6 Tex. Civ. App. 479, 25 S. W. 1055.

69. Bedell v. Chase, 34 N. Y. 386; Sanger v. Colbert, 84 Tex. 668, 19 S. W. 863.

70. Foote v. Cobb, 18 Ala. 585; Hempstead v. Johnston, 18 Ark. 123, 65 Am. Dec. 458.

erty by the latter, in the absence of knowledge by either the vendor or vendee of the guilty purpose of the sureties."

71

§ 23. Testimony of parties as to their motive, purpose, or intent. Where a conveyance is alleged to be fraudulent as to creditors, as a general rule, the grantor may testify as to his good faith and intentions and that he had no intention of defrauding his creditors, such intent as to him being neither a conclusion of law nor a mere inference.72 But while a grantor in a purported fraudulent conveyance may testify as to whether or not he made the conveyance with intent to hinder, delay, or defraud creditors, the question as to what was his intention in executing the papers is an improper form of inquiry. The first form of inquiry goes to the very issue; the second, if permitted, might open up matters foreign to it, that is, lead to false issues.73 If the necessary conse quence of a conceded transaction was defrauding another, then, as a party must be presumed to have seen and intended the necessary

71. Sonnenschein v. Bantels, 41 Neb. 703, 60 N. W. 10.

72. N. Y.-Forbes v. Waller, 25 N. Y. 430; Griffin v. Marquardt, 21 N. Y. 121; Seymour v. Wilson, 14 N. Y. 567; Blaut v. Gabler, 8 Daly, 48; aff'd 77 N. Y. 461; Durfee v. Bump, 51 Hun, 637, 3 N. Y. Supp. 505.

Colo.-Brown v. Potter, 13 Colo. App. 512, 58 Pac. 785; Love v. Tomlinson, 1 Colo. App. 516, 29 Pac. 666, both the vendor and his agent who made the sale may testify as to the intent.

Conn.-Hallock v. Alvord, 61 Conn. 194, 23 Atl. 131.

Ind.-Sedgwick v. Tucker, 90 Ind. 271. Kan.-Bice v. Rogers, 52 Kan. 207, 34 Pac. 796; Gardom v. Woodward, 44 Kan. 758, 25 Pac. 199, 21 Am. St. Rep. 310.

Mass.-Thacher v. Phinney, 89 Mass. 146.

Mont.-Finch v. Kent, 24 Mont. 268, 61 Pac. 653. Neb.-Campbell

V. Holland, 22 Neb. 587, 35 N. W. 871.

N. C.-Nixon v. McKinney, 105 N. C. 23, 11 S. E. 154; Phifer v. Erwin, 100 N. C. 59, 6 S. E. 672.

Ohio.-Pierce v. White, 10 Ohio Dec. 552, 22 Wkly. L. Bul. 98.

S. C.-McGhee v. Wells, 57 S. C. 280, 35 S. E. 529, 76 Am. St. Rep. 567.

Tex.-Robertson V. Gourley, 84 Tex. 575, 19 S. W. 1006; Sweeney v. Conley, 71 Tex. 543, 9 S. W. 548; Brown v. Lessing, 70 Tex. 544, 7 S. W. 783; Dittman v. Weiss (Civ. App. 1895), 30 S. W. 381. Compare Schneick v. Noel, 72 Tex. 1, 8 S. W. 83.

73. Vilas Nat. Bank v. Newton, 25 App. Div. (N. Y.) 62, 48 N. Y. Supp. 1009.

consequences of his own act, the transaction itself is conclusive evidence of a fraudulent intent, for a party cannot be permitted to say that he did not intend the necessary consequence of his own voluntary act. In such cases the oath of the grantor that his motives were pure would be idle, and could not affect the determination one way or the other.75 So where the case is one in which the grantor's intent is not a material element, as where the issue is the wrongful suing out of an attachment based upon the alleged sale of property to defraud creditors. the testimony of the attachment defendant as to the intent with which he disposed of his property is not admissible. The grantee under a fraudulent conveyance cannot testify directly as to grantor's intention in making the conveyance, such testimony being the mere conclusion of the witness. He may, however, testify to circumstances tending to establish it." 77

76

§ 24. Fraudulent instrument or conveyance.-A conveyance

or an instrument of transfer which is fraudulent and void as to creditors of the grantor is not admissible in evidence against them to establish title under it,78 but, although void, it is admissible as evidence of the intention of the parties thereto." In an action in which a deed of trust is attacked by a creditor of the grantor, the deed of trust, and the note which it purports to secure, are admissible in evidence, where independent evidence of the existence of a valuable consideration to support such instrument is subsequently introduced. On the trial of the right of property seized on execu

80

74. Babcock v. Eckler, 24 N. Y. 623.

75. Seymour v. Wilson, 14 N. Y. 567; Garrett v. Wagner, 125 Mo. 450, 28 S. W. 762, where it is shown that an insolvent husband made voluntary conveyances to his wife, his testimony that he did not intend thereby to defraud his creditors is incompetent. Phifer v. Erwin, 100 N. C. 59, 6 S. E. 672.

76. Selz v. Belden, 48 Iowa, 451.

77. Roberts v. Miller (Tex. Civ. App. 1895), 30 S. W. 381; Numsen v. Ellis, 3 Tex. Civ. App. Cas., § 134.

78. Baldwin v. Flash, 58 Miss. 593; Dewart v. Clement, 48 Pa. St. 413.

79. Nixon v. Goodwin (Cal. App. 1906), 85 Pac. 169; Baldwin v. Flash, 58 Miss. 593; Oliver v. Reading Iron Co., 170 Pa. St. 396, 32 Atl. 1088.

80. Howell v. Bowman, 99 Ala. 100, 10 So. 640.