
    Henry Brackett and his wife, Clara Brackett vs. Daniel Waite, Jr. and J. Moulton.
    Orange,
    
      February, 1832.
    Where one in prosperous circumstances, and not much embarrassed with debts, in consideration of natural love and affection, made a voluntary conveyance to his daughter of a portion of his estate, leaving amply sufficient to pay all he'oweri, — it was held that such conveyance was good and valid against a subsequent moitgage given to secure a debt existing previous to the voluntary conveyance.
    If a voluntary conveyance be good and valid inlaw at the time it is made, it will not be rendered fraudulent by subsequent events by which the grantor becomes insolvent.
    This was an action of ejectment for certain lands in Braintree. Plea, the general issue. At the trial in the county court it appeared in evidence, that on the 18th day of May, 1830, the premises in question were owned by one William Ford, who on the same 'day, voluntarily conveyed them to his daughter, Clara Brackett, one of the plaintiffs. The deed expressed a consideration of three thousand dollars, though it appeared to have been given in consideration of natural love and affection only. On the 28th day of July, 1830, Ford executed a mortgage deed of the same premises to the defendant, Waite, to secure him for certain pro.misory notes executed to Waite previous to the conveyance by Ford to his daughter, amounting to about one thousand dollars. Soon after the execution of the mortgage deed, Ford died, and the defendant, Waite, subsequently procured from Ford’s administrator a deed of the equity of redemption. The mortgage deed to Waite was recorded the same day on which it was executed ; but the deed to Mrs. Brackett was not recorded, nor lodged for record, till the 8th day of November following. The plaintiffs offered evidence tending to prove that the mortgage deed to Waite was executed by Ford, and sent to the town clerk’s office for record, in the absence of Waite, and without his knowledge ; that Soon after the messenger was sent, with the mortgage, to the town clerk’s office, Waite returned, and was informed of what had been done, and at the same time was told that it was suspected the deed to the plaintiff, Mrs. Brackett, was void ; that Waite expressed his satisfaction at what had been done with regard to the mortgage deed. The plaintiffs also produced evi-deuce (ending; to prove that Ford, at the date of the deed to his daughter, Mrs. Brackett, and up to the 16th July, 1830, owned to the value of more than sixty thousand dollars. To ob-v‘ale ^le ed'ecl; ofthis evidence, the defendants adduced testimony tending to show, that on the 26th July, 1830, property belonging to Ford, to the value of about fifty thousand dollars, was destroyed by a freshet; that he then immediately became insolvent, and afterwards so died. The defendant also produced evidence tending to prove, that Ford, at the time of the conveyance to Mrs. Brackett, was indebted to Waite and others to the amount of sixteen thousand dollars. The plaintiffs requested the court to charge the jury, that if they believed Ford, on the 19th of May, 1830, was solvent, and was owner of attachable property, amply sufficient to secure all his debts, the deed of that date to plaintiff, Mrs. Brackett, was valid, though made on the consideration of natural affection only ; and that the subsequent losses and insolvency of Ford would not make said deed void as to Waite. But the court instructed the jury, that Waite was to be viewed as a creditor of Ford, whose debt existed before the 19th of May, 1830, and that, as to such creditors, the deed to Mrs. Brackett made for natural love and affection only, was void, though the grantor, at the time, was solvent, and liad visible property amply sufficient to pay all his debts, if he afterwards became insolvent. The jury returned a verdict for the defendants. The plaintiffs filed exceptions to the charge to the jury, and also to a decision of the court admitting in evidence the mortgage deed and notes ; whereupon the cause was brought up to this Court on a motion for a new trial.
    
      Mr. Collamer,for the plaintiffs.
    
    The mortgage to Waite, not having been received by him, and being yet within the control of Ford, when Waite was informed of the deed to C. Brackett, Waite took it subject to Brackett’s deed ; and the question is, was that void as to Waite ?
    I. Waite claims as purchaser, and insists that the previous voluntary conveyance is void as to a subsequent purchaser for good consideration, even with notice. 1st. In answer to this, it is contended for the plaintiffs, that Waite cannot claim asa creditor and purchaser by the same conveyance. A mortgage is a mere security for the debt, and the mortgagee yet a creditor. 2nd. As to the conveyance from the administrator of the equity of redemption, that is not such a purchase as enables the purchaser so avoid the previous voluntary conveyance. — Rob. on Fraud, 30-40. The previous voluntary conveyance is made void as to subsequent purchasers by relation. The subsequent conveyance by the tor is taken as evidence of his previous fraudulent intent, and so his first conveyance rendered void. But a sale by his administrator cannot furnish such evidence. 3rd. The plaintiffs insist that the whole of the doctrine for which the defendants contend is founded on the 27th of Elizabeth, which has not been here adopted. — 4 Cowell’s Rep. 599, Jackson ex dem. Steward vs. Town. That statute, and the decisions upon it, is one of those artificial contrivances to which England has resorted as a guard against fraud in a particular form. It creates a conclusive legal presumption to guard subsequent purchasers. In this country no such evil exists. Security is found in our registry system, and, therefore, that statute has never been here adopted. That statute has none of those words, “declare,” ike., on which the coni ts in England have ever laid stress, as making the 13th of Elizabeth an-act declaratory.
    
    .II. The main question in this case, and the one on which the-case was put by the court is,-was the voluntary conveyance absolutely void as to creditors? 1st. The plaintiffs insist that the statute of 13th of Elizabeth differs from ours in this : The statute' of'Elizabeth declares the sale void, as to all whose rights “«re,shall, or might be” affected. — Rob. on Frauds, 3. Ours afleets those only intended to be afiected. 2nd. Voluntary conveyances will be found, on examination into all the authorities, never, even-in England, to have been holden ns more than presumptively fraudulent as to creditors, not absolutely void, as decided in litis case by lite court. Such conveyances have only been set aside in chancery when unexplained ; they have not been treated as' void. The subsequent nonpayment of his debts by the grantor has been coupled with his previews voluntary conveyance, and made presumptive evidence ol fraudulent intent in that conveyance. • For if the conveyance was good when made, it is ever1 good. Still, these subsequent conveyences are subject to exam--ination j and if it can be shown that, when the conveyance was made, enough of property remained for creditors, and thus the intent of the grantor, at that time, shown to be fair; and-if the subsequent non-payment can be explained, as not resulting from his acts intended from the beginning, but as arising from calamities which-no human foresight or prudence could have anticipated, or avoided, then this presumption is rebutted. This has been-so holden after the most full investigation of all the authorities, English and American. — 8 Cowen’s Rep. 406. Seivard vs. Van Wyck ; 11 . Wheaton 214, Jackson ex dem. Steward vs. Town; 4 Cowen, 599 ; JYewland on Con. 384. Such deed is good against subsequent purchasers ; and good against creditors, unless the deed deprive them of an ample fund to pay their debts, and the words in the books, “ being indebted at the time,'’’’ mean insolvent. 3rd. If the deed does not deprive the creditors of funds for collecting their debts, it is not fraudulent when made; and the happening of contingencies subsequently, cannot divest the title unless they be of such a character as to furnish evidence of fraudulent intent when the conveyance was made. — 1 Aik. Rep. 116, Durkee vs. Mahony. If this were otherwise, every gift of real or personal property would be, at the time void as to creditors, whatever were the circumstances of the giver. — 4 Mass. Rep. 354, Drink-water vs. Drinkwater ; 3 Mass. 573. 4th. Even in relation to 27th Elizabeth, which has been carried much farther than the 13th, and made more conclusive and imperative, the weight of authority is, that the voluntary conveyance is merely presumptively fraudulent against subsequent purchasers, and that this presumption is subject to be explained. — Roberts on Frauds, 17, 61, 69, where the old authorities are collected. 5th. It yet remains a question whether under our statute, our courts will create even a presumption of fraud as to voluntary conveyances ; but most clearly they will not go, not only to do this, but even exceed the courts in England, deciding on a much stronger statute, and hold that such conveyances are ipso facto conclusively fraudulent.
    
      Mr. Upham, for defendants.
    
    The mortgage deed to the defendant, Waite, having been first recorded, deleats the deed under which the plaintiffs claim. But to avoid this difficulty the plaintiffs insist that Waite had notice of their unrecorded deed at the time he took his mortgage, and, for that reason, cannot hold the kinds against them. The defendants in reply, say, that the evidence given by the plaintiffs, upon this point, had no tendency whatever to show notice in fact to Waite of their unrecorded deed at the time he received his mortgage. The law goes upon the ground that express notice of a prior conveyance unrecorded, is equivalent to fraud, and for that reason avoids the subsequent recorded deed. — D. Chip. Rep. 42, 49 ; 8 Johns. Rep. 137 ; 3-Ves. Jr. 478 ; 3 A tic. Rep. 654 ; 1 Burr. Rep. 474; JVarcross vs. Widgery, 2 Mass, 509 ; McMechan vs. Griffing, 3 Pick. Rep. 149; Pendleton vs. Button, 3 Con. Rep, 406.
    
      2. We insist that the plaintiffs’ deed for several reasons is fraud-J ulent and void against the creditors oí the grantor. First. It expresses a pecuniary consideration of $3000, when in fact was paid, or secured to be paid,by the grantee, for the lands conveyed. The only consideration set up in support of the deed is natural love and affection. The deed on the face of it appears to have been executed upon a fair purchase for an adequate price, and to that test the inquiry must be confined. A deed brought forward, as founded on a valuable consideration, cannot be set up as a gift or voluntary conveyance. The party is bound by the consideration alleged. This position is well supported by the following authorities, viz. — Hildreth vs. Sands, 2 Johns. Ch. Rep. 43 ; Watt vs. Grove, 2 Sch. & Lef. Rep. 500 ; Marigley vs» Manee, 7 Johns. Rep. 341 ; Jackson vs. Delaney, A Cowards Rep. 427 i 2 Ves. 628. Second. Had the deed expressed the real consideration upon which it was founded, to wit, natural love and afiection, it would have been void under the statute of the 13 Eliz. c. 4, against all the creditors of the grantor, both antecedent and subsequent. It appears from the bill of exceptions that Ford, at the time he made this voluntary conveyance to his daughter, Clara Brackett, was in debt to the defendant, Waite, and others, to the amount of $16,000. This fact, if the authorities are to be relied upon, rendered the conveyance void against subsequent, as well-as antecedent, creditors. — Russell vs. Hammond, 1 Atk. Rep. 13 ; Walker vs. Burrows, Id. 93 ; Lord Townsend vs. Windham, 2 Vern. 10 ; Hildreth vs. Sands, 2 Johns. Ch. Rep. 48 j Reads vs. Livingston, 3 Johns. Ch. Rep. 481. The doctrine we contend for is supported in all its plenitude of analogies and consequences by the following cases, viz. Tayler vs. Jones, 1 Atk. Rep. 600 ; Middlecome vs. Marloiv, 2 Atk. 520 ; Stile-man vs. Ashdown, 2 Atk. 480 ; St. Armand vs. Barbard, Co-myn’s Rep. 255; Stephens vs. Olive, 2 Bro. 90 ; Lush vs. Wilkinson, 5 Ves. 387 ; Shaw vs. Standysh, 2 Vern. 326 ; JYaim vs. Prouse, 6 Ves. 759 ; White vs. Sansom, 3 Atk. 410 ; Fitzer vs. Fiizer, 2 Atk. 511 ; Ridney vs. Caussmaker, 12 Ves. 136 ; Hollaway vs. Millard, 1 MaddocFs Ch. Rep. 414; Bayard vs. Hoffman, 4 John. Ch. Rep. 450 ; Bennett vs. Bed-ford Bank, 11 Mass. Rep. 421.
    3. The plaintiffs object to the validity of our mortgage deed, because it does not accurately describe the notes intended to be secured by it. In the first place, we maintain, that it is not essential to the validity of a mortgage that it should truly state the debt which it is intended to secure.— Vide Shirras et al. vs. Craig # ° and Mitchel, 7 Cranch’s Rep.34. In the second place,we say,that notes formed no part of the defendants’ title, and it was not »ecessai7 t0 produce them at all on the trial. In fact, they were not produced for the purpose of making out the defendants’ title under the mortgage deed, but for the purpose of showing that the debt secured by the mortgage existed before the execution of the plaintiffs voluntary deed. In the third plea, we insist,, that the plaintiffs have no right under their voluntary and fraudulent deed, to impeach the validity of our mortgage, on the ground of a clerical mistake- irr describing the notes intended to be secured by it. Ford, himself, could not' do if, and we think the plaintiff’s stand on no better ground than their grantor. The defendants are in- possession of the lands- sued for under their deed, and the plaintiffs cannot oust them without making out a good title in themselves. They must recover upon the strength of their own title, not upon the weakness of ours. — 5 Term Rep. 110 ; 2 Term Rep. 684; 1 East’s Rep..246v
    
      4. Defendants- insist that they can hold the’ lands in question.by virtue of their deed from the administrators on Ford’s estate against the plaintiffs’ voluntary deed. Under this deed they claim to hold the lands conveyed, as bona fide purchasers, against the voluntary grantees of Ford. The administrators, it is true, sold the lands in question to the defendant, Waite, at public vendue, for a small sum ; but that does not prejudice his title. His claim is as good under this- deed as.it would, have been under an absolute conveyance-from Ford himself before his-decease. — Vide- Hildreth vs. Sands, 2 John. Ch. Rep. 60. It was holden by Lord Ellenbo-rough, in the case of Doe. eos dem. Otleyv s. Manning, (9- East Rep. 59,) that a voluntary conveyance of lands made in consideration of natural love and affection, is void as against a subsequent purchaser for a valuable consideration, though with notice of the prior conveyance, and though the grantor had other property at the time of such- conveyance, and did not appear to be then indebted, and there was no fraud in fact in the transaction : fer the law,, which is in all cases the judge of fraud and covin arising out of facts and intents, infers fraud in this case, upon the construction of the statute of the 27th Eliz. c. 4. In further support of this principle we refer to the following cases, viz. Colville vs. Parker, Cro. Jac. 158;. Rodgers vs. Langhue, 1 Sid. i 33; White vs. Hussey, Precedents in Chancery, 14 ; Tankins vs. Ennis, 1 Eq. Cas. Abr. oQi ; White vs. Sansom, 3. Jitk. 412; 
      Lord Townsend vs. Windham, 2 Wes. 10; Roe vs. Milton, 2 Wils. 356; Goodright vs. Masses, 2 Sir Wm. Black. Rep. 1019: Evelyn vs. Templar, 2 Bro. Ch. Cas. 148; Doc <?ew. Bothell vs. Martyn, 1 Nos. and PmZ. JV. P. 332; JYunn vs. Willsmore, 8 Ter. Rep. 528; Sterrye vs Arden, 1 John. Ch. Rep. 261. Again, the defendants may claim as purchasers under their mortgage deed. Perhaps it may be said, that the cases cited in support of the defendants’ title, under the administrators deed, are decisions upon the construction of the statute of the 26th Eliz., and that that statute is not in force here. The 27th Eliz. it is true, has not been adopted in this state by legislative enactment, but vve consider it merely declaratory of the common law, and'in force here, without any such enactment. — Vide Cadctgan vs. Rennett, Cowp. Rep. 434; Roberts on Conveyances, 10, n. The statute of the 13th Eliz. and 27th Eliz. it is said have been adopted in many of the states- without any legislative enactment, upon the ground that they are merely declaratory of the common law. I do not know of any decision in this state adopting the 27th Eliz. ; but I see no reason why it should not be adopted here, as well as in other states, as a part of our common law. — 1 Mass. Rep. 60, 61. The common law of England was adopted in this state in 1782 by statute ; and I suppose all the English statutes then in force, which were merely declaratory of the common law, were also adopted.
   Baylies, J.,

delivered the opinion of the Court. — It appears that on the 19th May, 1830, William Ford, of Braintree, in Orange county, possessed an estate of the value of $60,000, and was then owing about $16,000 ; that for love and natural affection only, the said William Ford then deeded lands of the value of $1000, lying in said Braintree, to his daughter, Clara, who was the wife of Heni-y Brackett, jr.; that on the 16th July, 1830, a flood came, and swept off $50,000 worth of said Ford’s estate, whereupon he was insolvent. At the time said Ford deeded the land to his daughter, Clara, he was owing Daniel Waite about $1000 on notes, dated 7th July, 1827 ; and to secure the payment of these notes, said Ford on the 28th July, 1830, mortgaged the lands, which he had deeded to his daughter,to said Waite ; and the question is, who has the better right to these lands, the daughter, who claims by her deed, or Waite, who claims by his mortgage. The county court charged the jury, “ that said Waite was to be viewed as a creditor of said Ford, whose debt existe(^ before said 19th of May, 1830, and that, as to such cred-¡tors, the deed of said Ford, made for love and natural affection only, was void, though the grantor at the time was solvent, and bad visible property amply sufficient to pay all his debts, if he af-terwards became insolvent.” To support this charge, the defendants rely on the case, Heade, Administrator of Reade vs. Livingston et al., 3 Johns. 481. In that case, Newt, Chancellor, after remarking upon several English cases, says, “ The conclusion to be drawn from the cases is, that if the party be indebted at the time of the voluntary settlement, it is presumed to he fraudulent in respect to such debts, and no circumstance will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. The presumption of law in this case does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the party. There is no such line of distinction set up, or traced in any of the cases. The attempt would be embarrassing, if not dangerous to the rights of the creditors, and prove an inlet to fraud. The law has, therefore, wisely disabled the debtor from making any voluntary settlement of his estate, to stand in the ivay of his existing debts. This is the clear, and uniform doctrine of the cases, and it is sufficient for the decision of the present case.” If the law be as it is here stated, no well founded objection can be made to the charge of the county court. But it is believed by this Court, that the principles of law, relating to voluntary settlements, are not understood, in England, precisely as above expressed. In 1 Roper's Husband and Wife, p. 307-8, it is said, The act of the 13th of Elizabeth, c. 5, does not make void voluntary settlements against creditors, but merely declares, that a fraudulent deed shall be void against them. Hence it seems to follow, that although a man be indebted at the time he made a voluntary settlement, yet it is no further void on that account, than as affording a presumption of fraud.” “This principle will serve asa guide lo the understanding of the cases, and the distinctions which have been made ; the conclusions to be drawn from which I shall endeavour to collect, and state them shortly.

“ If the husband, when he makes the settlement, after marriage, upon his wife, be not indebted at the time, subsequent debts will not defeat it. Upon this point Ld. Hardwicke, in Townshend vs. Windham. 2 Ves. Sen. 11, thus expressed himself: "If there be a voluntary conveyance of real estate or chattel interest by one not indebted at the time, although he afterwards becomes indebt» ed, if that voluntary conveyance was lor a child, and no particular evidence, or badge of fraud, to deceive or defraud subsequent creditors, that will be good ; but if any mark of fraud, or intent to deceive subsequent creditors, appears, that will make it void, otherwise not; but it will stand, though áfterwards he becomes indebted.”

“If the husband happen to be indebted at the time of making the settlement, the principle o $ presumption before stated, furnishes the following distinction : — If his debts be considerable,and the effect of the settlement would be, if substantiated, to defeat the creditors of their demands, then such settlement is void as fraudulent, under the act of the 13th of Elizabeth.

But it would not be so, it is presumed, if the debts were of inconsiderable amount; because their existence furnishes no presumption of the settlement having been made with an intent to deceive and defraud creditors ; and common sense would revolt at a decision, that a voluntary settlement made by a husband, having a rental of £5000 a year, should be void, if it happened, that when he made such settlement he was indebted in the trifling sum of £100. This point came under Lord Alvanley’s consideration in Lush vs. Wilkinson, 5 Ves. Jr. 384.

dfewland on Contracts, p. 383,4, 5, says : I shall now return to the statute of 13th Eliz. It will be found by examining the cases on this statute, that there is another circumstauce, which has been considered to be a badge of fraud ; I mean where a voluntary conveyance is made by a person indebted, at the time. This is construed to be proof of fraudulent intention with respect to creditors, although the deed may be in consideration of blood or of natural love and affection. Lord Coke, in Twyné’s case, says, when a man, being greatly indebted to sundry persons, makes a gift to his son, or any of his blood, without consideration, but only of nature, the law intends a trust between them.”

“ It is material, likewise, to remark, that to impeach a voluntary settlement made on a meritorious consideration, it seems to be necessary, that the person making it,not only should be indebted, but should he insolvent at the time. Lord Alvanley, in Lush vs. Wilkinson, 5 Ves. 384, says, “ a single debt will not do ; every man must be indebted lor the common bills for his house, though he pays them every week ; it must depend on this, whether he was in insolvent circumstances at the time.” •

And this is certainly the rational construction of the statute, on which we are commenting. For it was intended to prevent convey!lnces °f property, made with a design to defraud creditors. When, therefore, a person makes a voluntary settlement of his property, and is at the time in insolvent circumstances, as it must be obvious to him, he is doing an act which must deprive his creditors of the means of procuring the payment of their debts : this is a case, which plainly falls within the statute.”

“ But to say, that the mere circumstance of the person being indebted at the time, without reference to the comparative state of his debts, and of his means of paying them, shall be a sufficient proof (though the conveyance is. on a most meritorious consideration) of fraudulent intention, with respect to his creditors, is to assert, that a person, who, being seized of a landed estate in fee of £1000, settles, after marriage, on his wife a jointure of £30 a year, if he owes £30 at the time, and that sum only, shall be considered to make the settlement with a view to delraud his creditors. If Lord Alvanleifs idea, therefore, be correct, it will be necessary to remember the sense in which the term “ indebted” is used, when applied to these cases.”

In the case of Salmon vs. Bennett,1 Con. Rep. 525, Swift, Ch. J., gives the opinion of the court as follows : “ Fraudulent and voluntary conveyances are void as to creditors; but in the case of a voluntary convey anee,a distinction is made between the children of the grantor, and strangers. Mere indebtedness at the time will not, in all cases, render a voluntary conveyance void as to creditors, when it is a provision for a child in consideration of love and affection ; for if all gifts by way of settlement to children, by men in affluent and prosperous circumstances, were to be rendered void upon a reverse of fortune, it would involve children in the ruin of their parents, and in many cases might produce a greater evil than that, intended to be remedied. Nor will all such conveyances be valid ; for then it would be in the power of parents to provide for their children at the expense of their creditors. Nor is it necessary, that an actual or express intent to defraud creditors should be proved ; for this would be impracticable in many instances, where the conveyance ought not to be established. It may be collected from the circumstances of the case. But in all cases, where such intent can be shown, the conveyance would be void, whether the grantor was indebted, or not. In order to enable parents to make a suitable provision for their children, and to prevent them from defrauding creditors, these principles have been adopted, which appear to be founded in good policy. Where there is no actual fraudulent intent, and a voluntary conveyance is made to a child in consideration oflove and aflection, if the grantor is in prosperous circumstances, unembarrassed, and not considerably indebted, and the gift is a reasonable provision for the child, cording to his state and condition in life, comprehending but a small portion of his estate, leaving ample funds unincumbered for the payment of the grantor’s debts, then such conveyance will be valid against debts existing at the time. But though there be no fraudulent intent, yet if the grantor was considerably indebted and embarrassed at the time, and on the eve of a bankruptcy ; or if the value of the gift be unreasonable, considering the condition in life of the grantor, -disproporiioned to his properly, and leaving a scanty provision for the payment of his debts ; then such conveyance will be void as to creditors.”

Kent, chancellor, speaking of the above decision in Connecticut, says, “ The court do not refer to authorities in support of their opinion, and, perhaps, they may have intended not to follow, strictly, the decisions at Westminster Hall, under the statute 13 Eliz. I can only say, that, according to my imperfect view of those decisions, (and by which I consider myself governed,) this case was not decided in conformity to them ; .but I make this observation with great defference to that couit.” Reade vs. Livingston, (3 J. C. R. 504.) But if I understand the elementary writers, JVewIand and Roper, on this subject, they do fully support the opinion delivered by Sioift, Ch. J., in (he above case. And,in addition, the same principles are advanced by' the Supreme Court of the United States in their opinion delivered in the case, Hendee's Lessee vs. Longworth, 11 Wheat. 213. In this case the court say : “ A deed from a parent to a child, for the consideration oflove and aflection, is not absolutely void as against creditors. It may be so (under certain circumstances ; but the mere fact of being in debt to a small amount, would not make the deed fraudulent, if it could be shown, that the grantor was ire prosperous circumstances, and unembarrassed, and that the gift to the child was a reasonable provision according to his state and condition in fife, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud, but it is only presumptive, and not conclusive evidence of it, and may be met and rebutted by evidence on the-other side.”

1 consider, that the whole doctrine of the law, as to fraudulent conveyances under the statute of 13th Eliz. will apply to frauds ulent conveyances under our statute, ch. 32. s. 7, (Slade's Ed.)

Now, if we apply the principles of law, as explained by the elementary writers, aforesaid ; and as recognized by the courts of law as aforesaid, to the facts in the case under consideration, we cannot but see, that these facts afford no ground for presumption of fraud in William Ford, at the time he executed his deed to his daughter, Clara. For at that time Wm. Ford was in prosperous circumstances — his estate was worth $60,000, and he owed only $16,000 — his gift to his daughter, Clara, was a thousand dollars’ worth of land, which left enough of the estate to pay all his debts, and $43,000 over and above. The gift was not unreasonable, and affords no presumption, that it was made to injure creditors. If the deed to the daughter was not fraudulent in the beginning, it was not made so by subsequent events ; such as the waters sweeping oft $50,000 worth of the grantor’s property, and rendering him unable to pay his debts. This Court is satisfied, that the county court in their charge, did not instruct the jury according to the principles of law. For this reason alone, we reverse the judgemedt of the county court, and grant a new trial. The plaintiffs to recover their costs at this Court.  