
    Henry Greenough, Plaintiff, v. A. Gordon Greenough et al., Defendants.
    (Supreme Court, Washington Special Term,
    November, 1897.)
    1. Fraudulent conveyances — Intent — Consideration inadequate in part.
    A deed cannot be set aside, as given with intent to hinder, delay and defraud creditors of the grantor, when there is no proof of' a fraudulent purpose, nor will it be set aside where the consideration, although substantial, was not adequate, unless the grantee is chargeable with notice of the fraudulent intent of the grantor.
    2. When relief, not asked for, will be refused.
    Where the complaint, in such an action, does not ask for such relief, the court will not set aside a deed whose consideration was inadequate, order the property sold, and direct that, after the grantee has been reimbursed, the balance be applied on the judgment of the plaintiff, a creditor of the grantor.
    Action to set aside a deed on the ground that it was given with intent to hinder, delay or defraud creditors.
    Potter & Lillie, for plaintiff.
    O. A. Dennis, for defendants.
   McLaughlin, J.

To entitle plaintiff to recover he must establish, in addition to a fraudulent intent on the part of the defendant Ernest Greenough, that the defendant Gordon Greenough was not-a -purchaser “ for a valuable consideration,” or else that he had notice at or prior to the delivery of- the deed to him of the grantor’s. fraudulent purpose in giving it. The evidence fails to establish the existence .of either condition. A valuable consideration does not necessarily mean full value; the. statute is complied with if the sum is a substantial amount when compared with the value of the property transferred. If it is, although inadequate, it will be held sufficient to sustain the grantee’s title, unless he is chargeable with notice of the fraudulent intent of the grantor. Truesdell v. Sarles, 104 N. Y. 164; Wilmerding v. Jarmulowsky, 85 Hun, 285. It is conceded that the defendant Gordon obligated himself to pay the $1,600 mortgage on the premises conveyed, and on which at the time of trial he had actually paid $1,300. That this was a valuable consideration -cannot be seriously questioned, and I do not think-it can be-seriously questioned that he was a purchaser in good faith.. There is absolutely no- evidence which would justify a finding that he had notice of a fraudulent intent on the part of Ernest in making the transfer. Indeed, as I view this evidence, there is nothing to indicate that the defendant Ernest made the conveyance with a fraudulent intent. Eraud cannot be presumed; it must be proved. Every act is presumed to be honest, and this presumption prevails until evidence has been produced from which a legal conclusion can b§ drawn establishing the contrary.

But it is urged that the defendant Gordon did not pay full value, and, therefore, if he made the purchase in good faith, the .deed • nevertheless, .should be set aside, the property sold, and out of the proceeds Gordon first reimbursed and then the balance applied ;on the plaintiff’s judgment. This cannot be done for the reason that the. complaint does not. ask for such relief;, and if it would be proper under any circumstances for ,-a court to- convert an.absolute conveyance into what, in legal effect, would be a mortgage, the- facts are’not alleged iñ the complaint or established by thé evidence which would justify it in this case. Indeed, to do' this would violate every rule of pleading. It is well settled, both upon principle and authority, that a judgment cannot be given in favor of a plaintiff upon facts not stated in, or at least fairly inferable from, those set out in his complaint. Truesdell v. Sarles, 104 N. Y. 164. The complaint should be dismissed.

Complaint dismissed..  