
    Thomas Evans, and Elizabeth Evans, and others v. Mary D. Lewis.
    1. A voluntary conveyance of land made by a husband to his wife, through the intervention of a trustee, will not beheld void as to future creditors, on the mere ground that the husband subsequently became insolvent.
    2. Such conveyance will be set aside at the suit of a subsequent creditor, only on proof that it was made with intent on the part of the grantor thereby to defraud such subsequent creditor or creditors.
    3. One having a valid cause of action, sounding in tort, against such grantor, at the time of such conveyance, upon which an action was subsequently brought and judgment recovered, is to be regarded as a subsequent creditor.
    
    4. On the trial of an action brought by such subsequent creditor, against the grantor to set aside the voluntary conveyance, on the ground that it was made with intent to defraud the plaintiff, which intent was denied by the answer, the plaintiff having offered testimony tending to prove such intent, it was error in the. court to exclude the evidence of competent witnesses, offered by the defendant, tending to prove that a year before the making of such conveyance, and before the cause of action for which plaintiff’s judgment was recovered, had accrued, the grantor had promised his wife that he would convey the land in question to her.
    Error to the District Court of Lawrence county.
    The original action was brought by defendant in error against plaintiffs in error, and came into the district court by appeal from the decree rendered therein by-the court of common pleas. The petition of the plaintiff' below charged in substance: That she was a judgment creditor of the defendant, Thomas Evans, having recovered a judgment .against him, at the April term of the court of common pleas of said county, A. d. 1871, for $5,000 damages and ■costs of suit; that said judgment still remained in full force, and wholly unsatisfied; that she had caused execution to be duly issued thereon, which was, by the proper ■officer, duly levied, in June, 1871, on two town lots in Ironton, in said county, which were particularly described; that said defendant has no goods or chattels or other lands in said county subject to execution, which fact was indorsed by said officer on said execution; and that said Thomas Evans has no property known to the plaintiff', anywhere, except the lots so levied on. The petition also ■charges, that the said Thomas Evans, being the owner of said lots, for the purpose of defrauding the plaintiff, his ■creditors, and those who might become his creditors, on the 28th day of November, a. d. 1870, voluntarily, and without any valuable consideration, conveyed said lots to his wife, the defendant, Elizabeth Evans, passing the title to her through an intermediate trustee. She made several creditors of said Thomas Evans, whose debts were secured by mortgages on said lots, executed by Evans and -wife, parties defendant, and asked to have the voluntary conveyances made by Evans to the.trustee, and by the trustee to Elizabeth Evans, set aside, and that the lots levied on should be •sold for the satisfaction of her said judgment.
    The defendants below, Evans and wife, answered separately, expressly denying the fraudulent intention and purpose charged, and alleging that the conveyances in question were made in good faith, and in pursuance of a promise and agreement made by the husband to and with his said wife, nearly one year before the execution of the deeds in question, and before the cause of action on which plaintiff recovered her judgment -had accrued; that said promise and agreement were made at the solicitation of the wife, in consideration that she had largely contributed to the acquisition of said lots; that the husband had become intemperate in his habits, was in failing health, and the wife desired, under these circumstances, to secure a maintenance-for herself and her five minor children.
    From the record, it does not appear that there are any other creditors, except the plaintiff below, and the mortgagees who are made parties, and whose interests are unaffected by the conveyance in question — the mortgages being executed by both Evans and his wife.
    The record shows that the action in which she recovered her judgment against-Evans for $5,000 damages, was commenced January 11, 1871, and was brought to recover damages for the illegal sale of intoxicating liquors to her husband, Daniel Lewis, from July 1, 1870, till November 21,. 1870, when her said husband died from the effects of the-liquor illegally sold to him, as she averred.
    The conveyances sought to be set aside were made November 28 and 29, 1870.
    On the hearing of the case, the plaintiff offered testimony tending to prove that the conveyances in question were • made with the intention on the part of said Thomas Evans ' to prevent the plaintiff from collecting any judgment which she might recover against him in the event of her bringing - suit on account of the wrongful sales of liquor to her husband. "When the evidence for the plaintiff' had been closed, defendants, to maintain the issue upon their part,, called, among others, as a witness, one Thomas Doran, and asked him the following question : State whether, if at any time prior to the 28th day of November, 1870, you heard . any conversation between Thomas Evans and his wife in reference to conveying real estate by Evans to his wife? ’ To which said witness replied: “I have known Evans since ■ 1860 ; have been about his premises; heard Evans promise • his wife, at his residence, to convey the property to his wife, a year, before Lewis’ death; Evans was talking about, going to Europe.” To which question and said answer, . plaintiff, by counsel, objected, and said objection the court sustained. To which ruling of the court in sustaining said . objection defendants excepted, and asked that their exception be noted, which was done. Defendants also offered to call other witnesses for the purpose of propounding said question to them; but they refused to permit said witnesses to be called for such purpose, to which ruling of the court defendants excepted, and their exception was noted.
    The court found the issues in the action in favor of the plaintiff. Defendants moved for a new trial, for the reason, .among others, that the court erred in the trial of the case in rejecting the evidence offered by the defendants to prove that said Thomas Evans had at divers times before the death of said Lewis, and before said conveyances, at the solicitation of his wife, promised and agreed to make a .settlement of his real estate upon his wife as a provision for her support and that of her children. This motion the court overruled, and entered a decree in favor of the plaintiff.
    The exclusion of the testimony so offered by the defend.ant is assigned here for error.
    
      F. B. Pond, and Leet & Hamilton, for plaintiffs in error.
    
      Neal & Cherrigton, and E. V. Dean, for defendant in error.
   Scott, J.

At the time of the execution of the convey.anees, which Mrs. Lewis, the plaintiff below, sought to have set aside as fraudulent and void as to creditors, she was not a creditor of the grantor, Thomas Evans. True, she had a valid cause of action against him, at that time, ■but one sounding in tort, and which was not asserted even by bringing suit thereon, till a month or more thereafter. The existence of such a cause of action clearly does not -establish the legal relation of debtor and creditor between the wrongdoer and the party injured.

When she subsequently brought her action, and recovered judgment, she became a creditor of Evans, the grantor, but in seeking to invalidate his previous conveyances she can •only assert the rights of a subsequent creditor.

It is well settled, that a voluntary conveyance of land, duly made and recorded, will not be held void as to. future -creditors, on the mere ground that the grantor, or donor, ■subsequently became insolvent. Such conveyance will be •set aside at the suit of a subsequent creditor, only on proof that it was made with the intent, on the part of the grantor, thereby to defraud such subsequent creditor or creditors. Creed v. Lancaster Bank, 1 Ohio St. 1.

It does not appear in this case, that there are any creditors of the grantor, wdiose interests can be affected by the ■conveyance in question, except Mrs. Lewis, the plaintiff' below. All other creditors appear to have taken mortgages on the lots in controversy, to secure their claims; and as these mortgages were executed by Mrs. Evans, as well as her husband, they would be equally available, whether the conveyances in question were to be held valid or void. At least, the conveyances were not to the prejudice of such creditors.

The right of Mrs. Lewis, as a subsequent creditor, to have the conveyances set aside, depended on the question, whether ■or not they were made by Thomas Evans, with the intent at the time thereby to defraud her, as such future and prospective creditor? She had alleged this fraudulent intent in her petition, and it had been denied by the answers of both Evans and his wife. This was indeed the only material issue of faet made by the pleadings.- The plaintiff' had offered evidence tending to maintain this issue on her part. There can be no doubt that the defendants had a right, by competent •evidence, to maintain this sole issue on their part. They had denied by answer the fraudulent intent charged, and had averred the conveyances were made in pursuance of an arrangement made between the defendants, and a promise made by the husband to the wife, almost a year before that time. That .this agreement and promise were founded on considerations wholly unconnected with Mrs. Lewis’ cause of action, and were in fact made months before the tort for which she recovered her judgment had accrued. To support these .averments, they called a witness, who testified that “ he heard Evans promise his wife, at his residence, a year before Lewis’ death, to convey this property to her.” This ■evidence was on plaintiff's motion excluded.

To a majority of the court, it seems impossible to justify this exclusion. The promise testified to, tended (with what degree of weight we need not say) to account for the making of the conveyance, and to show a state of facts from which a presumption, more or less strou'g, might well arise, that it was made for an honest purpose, having no reference-to Mrs. Lewis, or her cause of action.

The duty to perform such a promise would, it is true, be-one of imperfect obligation, yet it might well influence the conduct of an honest man. That such a duty rested upon the defendant, Thomas Evans, at the time of making-the conveyance, we think the defendants had a right to show. This was one of the circumstances under-which the conveyance was made, and by the light of which the intention of the actors in that transaction must he ascertained.

Eor error in excluding this evidence, the judgment of the district court must be reversed.

Day, C. J., and Johnson, J., dissented.  