tion, the bill of sale, upon which the claiman oases his title, is admissible in evidence, though there is evidence that it was fraudulent as against plaintiff, no fraud appearing on the face of the instrument.81 A judgment by confession constructively fraudulent as to creditors for defects in the affidavit, though valid between the parties, has no operation against third persons, and cannot be read in evidence, even in mitigation of damages, in an action of trespass by vendees of the judgment debtor.82

8 25. Admissibility of pleadings in evidence. In suits in equity to set aside conveyances or transfers of property alleged to have been made in fraud of creditors, the admissibility of the pleadings, or the allegations, admissions, and denials contained therein, in evidence is governed by the general principles and rules of equity, except where such rules have been abrogated or changed by statute.

83

84

§ 26. Nature and forms of transactions.-Evidence tending to show the real nature and purpose of the transaction alleged to be fraudulent is admissible. The seller may testify whether the sale was absolute and whether there was any reservation outside of it.86 Circumstantial evidence may be given, in case of alleged fraud, to show that a receipt purporting to be given for one purpose was in reality intended for a different transaction, that it

81. Hill v. Rutledge, 83 Ala. 162, 4 So. 135. And see Greer v. Richardson Drug Co., 1 Tex. Civ. App. 634, 20 S. W. 1127.

82. Sheppard v. Sheppard, 10 N. J. L. 250.

83. Ala.-Danner Land, etc., Co. v. Stonewall Ins. Co., 77 Ala. 184; Thames v. Rembert, 63 Ala. 561.

Ill. Clark v. Wilson, 127 Ill. 449, 19 N. E. 860, 11 Am. St. Rep. 143, aff'g 27 Ill. App. 610.

Mich.-Whitfield v. Stiles, 57 Mich. 410, 24 N. W. 119.

Va.-Yates v. Law, 86 Va. 117,9 S. E. 508; Rixey v. Deitrick, 85 Va. 42, 6 S. E. 615; Fink v. Denny, 75 Va. 663. 84. Smith v. Tosini, 1 S. D. 632, 48 N. W. 299.

85. Nelms v. Steiner, 113 Ala. 562, 22 So. 435; Robinson v. Bliss, 121 Mass. 428; Hills v. Eliot, 12 Mass. 26, 7 Am. Dec. 26; Cain v. Mead, 66 Minn. 195, 68 N. W. 840; Wade v. Odle (Tex. Civ. App. 1898), 46 S. W. 887, 47 S. W. 407.

86. Angell v. Pickard, 61 Mich. 561, 28 N. W. 680.

was to operate as a cover of a mere conditional sale. Where a transaction was in form a sale of a partner's share in the business, and he was subsequently employed by the firm as a clerk, the fact that his salary as a clerk was much less than the actual value of his services is relevant as tending to show whether he had some interest in the business aside from his contract of employment, and thus to show the real purpose for which the sale was made.88 Where a debtor's conveyance is attacked by creditors as fraudulent, extrinsic evidence that the instrument of transfer, while absolute on its face, was in fact intended only as a mortgage or security, is admissible to sustain the charge of fraud. For example, declarations to that effect by the grantor,90 and a chattel mortgage shown to have been made by the vendor to the vendee on the same day as the alleged sale," are admissible as tending to show that the sale was not absolute. But such evidence, although admissible on be half of the attacking creditor, is not admissible on behalf of the grantee.92 Where the defendants offer to prove a state of facts tending to show that the real ownership of the property has not been changed, it is error to refuse to consider such evidence.'

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93

§ 27. Plaintiff's right to sue- Adjudication of creditor's claim. To establish the creditorship of the plaintiff and to prove the exhaustion of his legal remedies, the judgment obtained by the attacking creditor against the alleged fraudulent grantor," or a

87. Baltimore, etc., R. Co. v. Hoge, 34 Pa. St. 214.

88. Howard v. Stoddard, 9 St. Rep. (N. Y.) 429. But where a stock of goods is transferred by itemized bill of sale which does not include the good will of the seller's business, evidence of the value of the good-will is inadmissible. Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417.

89. McClusky v. Cubbison, 8 Kan. App. 857, 57 Pac. 496; Harris v. Daugherty, 74 Tex. 1, 11 S. W. 921, 15 Am. St. Rep. 812.

90. Badger v. Story, 16 N. H. 168.

91. Huschle v. Morris, 31 Ill. App. 545. See also Bernhardt v. Brown, 122 N. C. 587, 29 S. E. 884, 65 Am. St. Rep. 725.

92. Hartshorn v. Williams, 31 Ala.

149.

93. Fitzpatrick v. Fox, 80 App. Div. (N. Y.) 345, 80 N. Y. Supp. 677.

94. Baxter v. Hebberd, 5 St. Rep. (N. Y.) 854, deficiency judgment in foreclosure; Hamilton v. Wagner, 9 Ky. 333. But the allowance of a

transcript thereof,95 is admissible in evidence. A mortgage alone, without the production of the notes secured by it, is evidence of title and the mortgage debt. It is the mortgagor's admission to that effect. Whether sufficient and satisfactory or not depends upon the accompanying circumstances. So plaintiff's ownership

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of the judgment against the grantor may be established by the admission of the grantor while he was in the possession of the property conveyed." The note on which the plaintiff's judgment was rendered is admissible to show the existence of the debt before the date of the deed," upon proof of the execution of the note, but a note not shown to be connected with the judgment, and signed not by the grantor, but by a partnership of which he was a member, is not admissible to show the date of the indebtedness to plaintiff.1 Plaintiff may go into the particulars of a trade of personal property for land, and a modification of that trade afterwards, in order to show that he is a creditor.2 In an action against a sheriff by a claimant of personal property which is attached as the property of the mortgagor, the papers in the attachment suit are not competent evidence in the sheriff's behalf of the mortgagor's debt to the attaching creditor.3 Where it appears that the debt upon which plaintiff's judgment was recovered was created subsequently to the conveyance, plaintiff can assail the conveyance by the debtor only by showing that it was given with a view of continuing in business and creating debts, and saving his property

claim against the estate of a decedent is not evidence of the validity of the claim, as against grantees of the decedent in an alleged fraudulent conveyance. Willett v. Malli, 65 Iowa, 675, 22 N. W. 922.

95. Hunsinger v. Hofer, 110 Ind. 390, 11 N. E. 463; Dameron v. Williams, 7 Mo. 138, to show himself a judgment creditor in order to contest a deed, plaintiff in an execution issued on a judgment of a justice must produce the whole transcript of the justice's docket.

96. Powers v. Patten, 71 Me. 583. 97. Martel v. Somers, 26 Tex. 552. 98. Helm v. Newland, 2 Blackf. (Ind.) 233.

99. Ezzell v. Brown, 121 Ala. 150, 25 So. 832.

1. Hand v. Hitner, 140 Pa. St. 166, 21 Atl. 260.

2. Holmesly v. Hogue, 47 N. C. 391.

3. Smith v. Collins, 94 Ala. 394, 10 So. 334; Braley v. Byrnes, 20 Minn. 435, distinguishing Hall v. Stryker, 27 N. Y. 596.

from them, or for the purpose of defrauding his future creditors. It is therefore competent for the defendant to show that the grantor did not in fact carry on any business on his own account or actually contemplate the creation of future debts, but that he in fact had acted as agent for another and contracted the debt on behalf of another."

5

§ 28. Attack on plaintiff's right to sue.-In an action by a judgment creditor to set aside a deed, testimony tending to invalidate the note upon which the judgment was recovered is admissible, although it constitutes a collateral attack upon the judgment, when fraud is charged against the parties thereto, but otherwise it is inadmissible. Evidence of the defendant that he did not owe the amount of the judgment is properly excluded, since the judgment is conclusive evidence of his liability, in the absence of evidence on his behalf tending to show fraud, accident, mistake, or satisfaction. Where plaintiff's judgment was recovered in an action of trespass, the right to recover for the trespass is fixed by the judgment, and evidence that the defendant instructed his employees not to commit the acts constituting the trespass is irrelevant. But under proper allegations in the pleadings the grantee may show that the judgment of the plaintiff was collusively rendered upon a fictitious claim for the purpose of defeating the grantee's title, and declarations and admissions of the parties are admissible for this purpose."

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§ 29. Proof of date of plaintiff's claim.-In an action by a creditor to set aside a conveyance by his debtor for actual fraud as to creditors, a judgment against the debtor, recovered by him after the date of the conveyance, is competent evidence of the existence

4. Teed v. Valentine, 65 N. Y. 471.

5. Sullivan v. Ball, 55 S. C. 343, 33 S. E. 486.

6. Suber v. Chandler, 36 S. C. 344, 15 S. E. 426.

7. Finch v. Kent, 24 Mont. 268, 61 Pac. 653.

8. Cole v. Terrell, 71 Tex. 549, 9 S. W. 668.

9. Pomeroy v. Bailey, 43 N. H. 118.

of the debt at the time when the judgment was rendered, and establishes the creditor's right to attack the conveyance." But where the conveyance is alleged to be only voluntary and constructively fraudulent, if the attacking creditor would use the judgment to the prejudice of the grantee, there must be independent evidence of facts showing that the cause of action which authorized the rendition of the judgment antedates the conveyance." The record of a judgment rendered after the conveyance in issue is not admissible in evidence, as against the grantee, to prove an indebtedness to the plaintiff prior to its rendition, unless other evidence be offered to show that fact.12 But the judgment creditor may show by the pleadings and proceedings in the case prior to the judgment, or other competent evidence, that his debt existed at or prior to the date of such conveyance,13 notwithstanding the objection that such evidence is res inter alios acta as to the grantee.1 Where the claim of the attacking creditor is evidenced by a note given after the conveyance, he is entitled to show that the note was given for a debt that existed before the date of the execution of the conveyance.15 Where the plaintiff's judgment was rendered on a note, the conveyance having been made after the date of the note and before the rendition of judgment, the note is admissible to show the existence of the debt before the date of the conveyance.16

30. Indebtedness of grantor.-Where a conveyance by a debtor is attacked as fraudulent as to creditors, evidence of the

10. Yeend v. Weeks, 104 Ala. 331, 16 So. 165, 53 Am. St. Rep. 50.

11. Yeend v. Weeks, supra; Coles v. Allen, 64 Ala. 98.

12. Marshall V. Croom, 60 Ala. 121; Snodgrass v. Decatur Branch Bank, 25 Ala. 161, 60 Am. Dec. 505; Martin v. Duncan, 181 Ill. 120, 54 N. E. 908, aff'g 79 Ill. App. 527; Hoerr v. Meihofer, 77 Minn. 228, 79 N. W. 964, 77 Am. St. Rep. 666.

13. Holladay v. Case, 27 Fed. 830; Jamison v. Bagot, 106 Mo. 240, 16 S. W. 697.

14. Jamison V. Bagot, supra. Compare Arnett v. Coffey, 1 Colo. App. 34, 27 Pac. 614.

15. Stout v. Stout, 77 Ind. 537; Blue v. Penniston, 27 Mo. 272.

16. Helm v. Newland, 2 Blackf. (Ind.) 233.