
    M. Kane et al. v. Geo. W. Adams et al.
    Fraudulent Conveyance — Mortgage to Prefer Creditor — Assignment Under Act of 1856.
    As the debts of the appellees existed before the execution of the mortgage, the allegation in the answer that appellants were about to attach the' property of Kane and that the mortgage was given to prevent them from taking such proceedings to secure their debt was not sufficient, therefore the demurrer was properly sustained.
    APPEAL PROM SHELBY CIRCUIT COURT.
    September 8, 1871.
    
      Caldwell & Harwood, for appellants.
    
    
      Bullock & Davis, for appellees.
    
   Opinion by

Judge Lindsay :

The execution of the mortgage by Kane to his co-appellants not only evidenced an intention on his part to prefer the mortgagees to the rest of his creditors but actually had that effect unless the judgment of the circuit court shall be upheld.

The mortgagees in their answer claim that they were about to attach the property of Kane, and that the mortgage was given to prevent them from taking such proceedings to secure their debts. Kane was not a non-resident of the state, hence if there existed any ground for their contemplated attachments, it must have been of a nature indicating an intention upon his part to avoid the payment of his debts by some fraudulent disposition of his property. Such a disposition of property is always made in contemplation of insolvency.

The mortgagees recognizing this fact attempted to secure themselves by their mortgage. We aré of the opinion that the state of facts developed by the record brings this case within the operation of the act of 1856, and hence that the demurrers to said answers were properly sustained. The petitions sufficiently allege that the debts of the appellees existed before the execution of the mortgage. The judgment appealed from is affirmed.  