
    Samuels, Arnold & Co. v. R. M. Henderson & Co.
    Fraudulent Conveyance — Purchase by Husband — Title Bond to Wife— Stranger.
    The debtor is found in the possession of the land, and he contracted for the purchase of it, and, although by the recitals of the bond his wife holds the equitable title, the recitals are not evidence against a stranger to the transaction, while between the parties they might be evidence of the facts recited. •
    APPEAL FROM BALLARD CIRCUIT COURT.
    December 20, 1871.
   Opinion by

Judge Peters :

At the conclusion of the p'rayer for relief; and at the end of a petition of more than five pages in length, the averment of which the relief sought could not have been granted, is found, out of place and where it was not to be looked for; it therefore escaped ¡the attention of the court, and was not observed until after an opinion had been delivered and a petition for a rehearing was presented. But the allegation is made and is not controverted by the answers; it must, therefore, be taken as true. And the question arises, are the facts pleaded in the answer without evidence to sustain them sufficient to defeat a recovery? They are not, because it fails to controvert the fact that the debt of appellants was created before the bond was executed. And as R. M. Henderson, the debtor, is found in the ostensible possession of the land and he contracted for the purchase of it, and although by the recitals of the bond,- Mrs. Henderson- holds the equitable title; the recitals are not evidence against strangers to the transaction while as between the parties they might be evidence of the facts recited; that being the case, it was incumbent on appellees to prove that the land was paid for with her means, which was not done. Wherefore the judgment is reversed and the cause re-mhnded for further proceedings consistent herewith. Appellees should- have reasonable time allowed to make preparation by proof in the case if it is desired. Judge Lindsay not sitting in the case.

Bigger & Moss, for appellant.

Bullock, for appellee.  